September 13, 2014 rhanafi

Disability Discrimination Claims

In the employment law context, most disability discrimination claims are covered by the Fair Employment and Housing Act, commonly called the “FEHA.” The FEHA applies to any employer with five or more employees. Among many other protections, the FEHA protects the employment rights of disabled workers. The Federal equivalent is the Americans with Disabilities Act, or the “ADA.”  Both acts cover similar rights, but as usual, California law is generally more protective and favorable to employees, with a few limited exceptions.

Under the FEHA, “disability” is a broader term than its common usage in everyday conversation. A disability can be physical, mental, or a genetic characteristic. There are also specific medical conditions defined in the law, such as cancer, that automatically qualify.

  • A physical disability is any physical disease, disorder, condition, cosmetic disfigurement, or anatomical loss that limits a major life activity, such as working.  This can range from a sprained ankle, to carpal tunnel syndrome, to loss of limbs.
  • A mental disability is any mental or psychological disorder or condition that limits a major life activity, such as working. This can range from a learning disability, to bipolar disorder, to depression.
  • If an employer thinks an employee is disabled and discriminates against that employee, the employer is still liable even if the employer was mistaken in believing the employee was disabled.    

Almost any physical or mental impairment is protected as a disability if it makes your work more difficult. Once an employer knows an employee is disabled, the employer is required to engage in the “interactive process” in an effort to “reasonably accommodate” the employee’s disability. In plain English, the process should work like this:

  1. Your employer learns about your disability and how your ability to work is affected or restricted.
  2. You and your employer, and possibly your doctor, discuss how you can continue to do your work with your disability. Common solutions include time off to recover, switching or limiting duties temporarily, ergonomic devices, speech to text software, and a variety of other common and cost-effective solutions.
  3. You eventually recover, or continue working with your accommodations. Or, after an honest and good faith interactive process with your employer, it is determined that your disability is so severe that your employer cannot accommodate you.

Unless accommodating the disability constitutes an “undue hardship” on the employer’s business, the employee must be accommodated. Click on the hyperlinks above to read more about each step in the process.