Disability discrimination has become commonplace in many facets of our economy. Unfortunately, many employees are unaware of the rights afforded to them under the law, leaving them with the difficult decision to choose their salary over their rights.
California’s Fair Employment and Housing Act (FEHA) offers protections for workers with disabilities separate from those under the federal Americans with Disabilities Act (ADA). While the ADA provides a base of protection, FEHA provides additional protections to employees.
FEHA states that a "physical disability" includes any physiological disease, disorder, or condition that:
Under the ADA, a worker with a disability is defined as someone who has a physical or mental impairment that “substantially” limits how that person can perform a major life activity. FEHA provides additional protection to individuals with a disability if the disability limits a major life activity, regardless of whether the limitation is substantial.
"Major life activities" may include:
Under California law, an employer must provide a reasonable accommodation for an applicant or employee with a known mental or physical disability unless the accommodation would cause an undue hardship, i.e., significant difficulty or expense, upon the company.
To establish a failure to accommodate claim, an employee must show:
An “essential function” means the fundamental job duties of the position the applicant or employee with a disability holds or desires.
Once notified of a disability, employers must initiate an “interactive process” conducting an individualized assessment of both the job and the specific physical or mental limitations of the individual that are directly related to the need for reasonable accommodation. The employer must also offer to initiate an interactive process when the employer becomes aware of the possible need for an accommodation. This awareness might come through a third party, by observation, or because the employee has exhausted leave benefits but still needs reasonable accommodation. In California, it is unlawful for an employer to fail to engage in a timely, good faith interactive process.
A "reasonable accommodation" refers to a modification or adjustment to the workplace that allows the employee to perform the essential functions of the job held or desired. These could include:
The employee has a duty to cooperate with the employer's effort by explaining his or her disability and qualifications. The interactive process envisions an exchange between employer and employee where each seeks and shares information to achieve the best match between the employee's capabilities and available positions.
Retaliation
California workers cannot be retaliated against for reporting workplace discrimination against a co-worker or other employee and are protected under the law for:
If an employer retaliates against an employee for reporting FEHA violations or other employment law violations, the employee may be able to file a complaint with the DFEH or file a lawsuit against the employer for retaliation or wrongful termination, if the employee is terminated as a result.
Relief
Remedies under the law include injunctive relief to stop the discriminatory practices and compensation to the victim of the discrimination. You could obtain the following: