A Disability Discrimination Lawyer Can Protect Your Interests
The Fair Employment and Housing Act ("FEHA") protects California employees from disability discrimination.
Employers Subject to FEHA
In order for an employer to be subject to FEHA they have to employ five or more employees. Any person acting as an agent of an otherwise qualified employer either directly or indirectly will bind the employer as well as possibly lead to personal liability for the agent. The FEHA applies to private employers as well as the State of California and its political subdivisions. Even if the FEHA does not apply to an employer other statutes or common law torts may apply.
For an employee to be protected from disability discrimination under the FEHA, they have to be a member of a protected category. Employees who have a medical condition, physical disability, or mental disability are in a protected category.
A medical condition includes cancer and infirmities related to the diagnosis of cancer; history of breast cancer; and genetic characteristics.
A physical disability includes any physiological disease, disorder, condition, cosmetic disfigurement or anatomical loss that affects one or more body systems. A physical disability must limit the employee’s ability to participate in a "major life activity." Under FEHA, a physical disability is construed broadly. It is enough that the disability makes a major life activity more difficult. Working itself is considered a “major life activity.”
A mental disability includes any psychological or mental disorder. Disorders include depression, bipolar disorder, and certain learning disabilities.
Under the FEHA an employer cannot discharge or refuse to hire employees who perform their essential job functions with or without a reasonable accommodation. An employee must be able to perform their essential job functions without a substantial risk of injuring themselves or others.
Essential job functions are job duties that are fundamental to the job as opposed to marginal job duties. Factors that are considered in determining whether a job function is essential include: reason for the job, number of employees an employer has who can perform the job function, and the percentage of time the employee spends performing the job function.
The FEHA requires employers to make a reasonable accommodation for an employee or job applicant’s known disability if that accommodation will allow the employee to perform their essential job duties. While the FEHA imposes duties on the employer, the employer is not required to provide a reasonable accommodation when doing so would create an undue hardship for the employer.
Employers have an affirmative duty to provide a reasonable accommodation, which means the employer, may have a duty to provide a reasonable accommodation when they are aware of an employee’s disability, even if the employee has not requested an accommodation.
Types of Reasonable Accommodation
- Job restructuring
- Part-time or modified work schedules
- Reassignment to a vacant position.
- An employer may have an obligation to suggest jobs since they have greater knowledge than the employee regarding available positions.
- Modifying equipment and devices.
- Adjusting or modifying training materials or company policies.
- Paid or unpaid leaves; although an employer does not have to hold a job open indefinitely as long as the employer has met their other leave obligations.
- Disabled employees are entitled to preference in assignment to a vacant position but the employer has no obligation to assign the employee to a position that would be a promotion.
Employers are required to engage in an interactive process with disabled employees to assist the employee in selecting an appropriate reasonable accommodation for their disability. The employer has a duty to initiate the interactive process when the employer is aware of the employee’s disability. The employee also has an obligation to initiate the interactive process with their employer to find a reasonable accommodation for their disability. The employer and employee both have an obligation to participate in the interactive process in good faith. An employer is not obligated to select the best accommodation the employee seeks. An employer may select a less expensive alternative.
Unlawful Discriminatory Practices
An employer cannot discriminate against a disabled employee. Discriminatory practices include refusing to hire an applicant or discharging an employee when the employer’s decision is motivated by the employee’s disability or medical condition. Discrimination includes changing the terms of a disabled employees employment, compensation or benefits.
An employer should not advertise a job in a manner that discourages applicants with disabilities from applying. Employers should accept applications from everyone regardless of disability. Employers should accommodate disabled applicants in the interview process. Interview locations should be handicapped accessible. Employers cannot discriminate against disabled employees in the terms of a job offer such as limiting a disabled employee’s health insurance benefits.
An employer may not require a pre-employment medical or psychological exam. Post hire medical or psychological exams need to be job-related. The exam must be directly related to the employee's position, required of all employees in that position and be required for the health and safety of the applicant or others. The exam may be allowed after the employee is offered a job provided it is a “real job offer.”
Job interviews or applications should not ask applicants about disabilities or prior worker’s compensation claims. Employers may ask questions about the applicant’s physical ability to perform actual job functions.
Employers should not allow any harassment of an employee that is motivated by the employee’s disability or medical condition. Harassment may include jokes or other inappropriate comments. Employers are liable for the harassing conduct of supervisors and others.
If an employer’s discharge of an employee is motivated by an employee's good faith complaint about disability discrimination the employer can be liable for a retaliatory discharge. Gov. Code § 12940(h).
American’s With Disabilities Act (ADA)
FEHA coverage is broader than the ADA. The ADA applies when you have 15 or more employees while FEHA only requires 5 or more employees. The ADA requires that a physical or mental impairment “substantially limit” a major life activity whereas under FEHA it only has to “limit” a major life activity. The duty for reasonable accommodation is broader under FEHA than the ADA. The ADA is referred to as providing the floor of protection.
Contact a Dedicated California Employment Law Firm
Thyberg Law is located in Roseville and represents clients throughout California, including the cities of Roseville, Folsom, Sacramento, Lincoln, Auburn, El Dorado Hills, and the surrounding areas. Call Thyberg Law at 916204.9173 or contact us online to schedule an appointment with a disability discrimination lawyer.