Orange County Disability Discrimination Lawyers
Defending Your Right to Reasonable Accommodations at Work
Disability discrimination is pervasive in today's workplaces, luckily, there are disability discrimination laws in place to protect employees.
The coverage provided to disabled workers by the FEHA is broader than that provided by the federal Americans with Disabilities Act (ADA), even after the amendment of the federal statute. If you find yourself in a situation at work where are being discriminated against due to a disability, our team of experienced attorneys want to help you defend your rights!
Entitled to Reasonable Accommodations
Employees and applicants with physical or mental disabilities are entitled to reasonable accommodations to perform the essential functions of the job they seek or hold. Employers must engage in a timely, good-faith interactive process in response to a request for reasonable accommodation, and the failure to do so is an independent violation of the FEHA. Government Code §12940(n).
The FEHA defines a disabled person to include a person with a “limitation” upon a major life activity, as opposed to federal law which requires a “substantial limitation” on a major life activity. Whether a disability “limits” a major life activity is determined without regard to mitigating measures, such as medications, assistive devices, or reasonable accommodations, unless the mitigating measure itself limits a major life activity. Government Code §12926.1(c).
For example, an employee or applicant with bad eyesight that can be corrected to 20/20 with glasses would be considered “limited” in the major life activity of seeing.
Chronic conditions that can be considered disabled under FEHA include:
- Seizure disorders
- Clinical depression
- Bipolar disorder
- Multiple sclerosis
- Heart disease
“Major life activities” are broadly defined under the FEHA to include “physical, mental, and social activities, and working.” Government Code §§12926(i),(k). Working is considered a “major life activity” under the FEHA whether the disabled employee is precluded from holding a particular job or a broad range of jobs. Thus, an individual who is prevented from performing a single job may qualify as disabled.
What Are Examples of Disability Discrimination?
It isn’t always easy to identify disability discrimination in the workplace, as discrimination is not always direct. However, indirect disability discrimination is still discrimination and does not have to be tolerated.
Some examples of disability discrimination in the workplace include:
- Failing to promote or hire an individual due to a disability: For example, if a qualified candidate is passed over for a promotion because of his or her disability, this is an example of disability discrimination in the workplace.
- Firing an employee due to disability: If an employee is fired because of his or her disability, including disability-related absences, this is an example of disability discrimination. Workers who believe they were fired because of their disabilities will need to prove that they were not fired for other reasons.
- Failing to accommodate a worker’s disability: Employers are legally required to accommodate employees’ disabilities within reason. Failing to do so constitutes disability discrimination. An example of this would be an employer failing to provide training materials for the hard of hearing or failing to install a ramp for wheelchair users to enter the facility.
- Withdrawing job offers due to a disability: Extending a job offer and then withdrawing it after learning of a qualified candidate’s disability could be classified as disability discrimination. Plaintiffs will need to prove that the job offer was rescinded because of their disabilities and not for other reasons.
- Discrimination based on past disabilities: Just as an employer cannot discriminate against you for a current disability, an employer can also not discriminate against you for a past disability. Examples include failing to hire or promote an employee, firing an employee, and providing negative verbal/written references based on past disability.
- Discrimination based on a family member’s disability: Employers also cannot discriminate against you based on your family member’s disability. For example, if you are passed over for a promotion for which you are qualified because your employer believes you will need to take too much time off to care for a family member, this is a form of disability discrimination.
This is not a complete list of examples of disability discrimination in the workplace; there are many other forms of such discrimination that are legally and morally unacceptable. Reach out to our firm if you believe you are the victim of disability discrimination and would like to learn more about reporting the discrimination and/or suing your employer for disability discrimination.
Qualifications for Protection
A disabled employee or applicant must be able to perform the essential functions of the job in question in order to qualify for protection. Government Code §§12940(a)(1) and (2). Also, as under the ADA, California law provides that written job descriptions, the amount of time spent on the function, and the employer's judgment as to which functions are essential can be considered in determining whether particular job functions are essential. Government Code §12926(f)(2).
Other such factors include whether the reason for the position is to perform the job function, the number of employees available to perform the function, and whether the function requires specialized expertise. Government Code §12926(f)(1). Employers must provide reasonable accommodations to assist a disabled applicant or employee in performing the essential functions of the job, unless doing so would cause an undue hardship. Government Code §12940(m). The elimination of essential job functions is not a reasonable accommodation.
If you are wondering whether you qualify for workplace protection, view our Disability & Medical Condition Glossary for more information.
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