Disability Discrimination

Disability discrimination is one of the most common types of workplace discrimination. Under California’s Fair Employment and Housing Act (FEHA), and the Federal Americans with Disabilities Act (ADA), it is illegal for an employer to discriminate against someone because of their disability.

The Americans With Disabilities Act or ADA, is probably more well known. But, California’s Fair Employment and Housing Act or FEHA provides greater protection.  So, we’ll mostly talk about that. 

Under the Fair Employment and Housing Act, it is illegal for employers, because of a person’s physical disability, mental disability, or medical condition, to:

• refuse to hire or employ the person;
• refuse to select the person for a training program leading to employment;
• bar or discharge the person from employment or from a training program leading to employment;
• discriminate against a person in compensation or in terms, conditions, or privileges of employment;
• fail to reasonably accommodate an employee’s physical or mental disability; or
• discriminate against an employee who requests a reasonable accommodation.

The definition of “disability” is pretty broad and includes physical and mental disabilities. 

What is a Physical Disability?
Under the Fair Employment and Housing Act, a physical disability is any one of the following:

• A physiological disease, disorder, condition, cosmetic disfigurement, or anatomical loss that both affects one or more of the following body systems – neurological, immunological, muscular skeletal, special sense organs, respiratory, including speech organs, cardiovascular, reproductive, digestive, genitourinary, hemic and lymphatic, skin, and endocrine- and limits a major life activity;
• A health impairment that requires special education or related services;
• Having a record or history of a physical disability that is known to the employer; 
• Being regarded or treated by the employer as having, or having had, a physical condition that “makes achievement of a major life activity difficult”; or
• Being regarded or treated by the employer as having, or having had, a condition that may become a physical disability.

The term “major life activity” includes physical, mental, and social activities, as well as working.  A “major life activity” is limited when a physiological disease, disorder, condition, cosmetic disfigurement, or anatomical loss makes the achievement of the major life activity difficult. 

What is a Mental Disability?
Under the Fair Employment and Housing Act, a covered mental disability is any of the following:

• Any mental or psychological disorder or condition, such as intellectual disability, organic brain syndrome, emotional or mental illness, or specific learning disabilities, that limits a major life activity;
• Any other mental or psychological disorder or condition that requires special education or related services;
• Having a record or history of a mental or psychological disorder or condition that is known to the employer;
• Being regarded or treated by the employer as having, or having had, any mental condition that makes achievement of a major life activity difficult; or
• Being regarded or treated by the employer as having, or having had, a mental or psychological disorder or conditions that may become a mental disability.

It does not include sexual behavior disorders, compulsive gambling, kleptomania, pyromania, or psychoactive substance abuse disorders resulting from the current unlawful use of controlled substances. It also does not include anxiety and stress resulting from a supervisor’s “standard oversight of the employee’s job performance.”

What is a Reasonable Accommodation?

An employer must make “reasonable accommodation” for individuals with known disabilities, unless they can demonstrate that doing so it would be an undue hardship on its business operations. The failure to make a reasonable accommodation alone is an unlawful practice that gives rise to FEHA damages. There are limits. If the employee or applicant cannot perform the essential functions of the job, even with accommodation, without endangering the health and safety of self or others, the employer can discharge or refuse to hire the individual.

An employer must make “reasonable accommodation” for individuals with known disabilities, unless they can demonstrate that doing so it would be an undue hardship on its business operations. The failure to make a reasonable accommodation alone is an unlawful practice that gives rise to FEHA damages. There are limits. If the employee or applicant cannot perform the essential functions of the job, even with accommodation, without endangering the health and safety of self or others, the employer can discharge or refuse to hire the individual.

Reasonable accommodation can include things like:

• Making existing facilities readily accessible to and usable by individuals with disabilities;
• Restructuring job schedules and responsibilities;
• Acquiring or modifying equipment or devices; and
• Providing qualified interpreters or readers.

An employer is not obligated to choose the “best” accommodation or the one sought by the employee. The employer has the ultimate discretion to choose among effective accommodations. Moreover, an employer is not required to make a temporary position available indefinitely if an employee’s temporary disability has become permanent. 

FEHA defines “undue hardship” as an action requiring significant difficulty or expense when considering:

• The nature and cost of the accommodation;
• The overall financial resources of the facility, the number of persons employed there, and the impact of the accommodation on the facility’s operations;
• The employer’s overall financial resources and overall size of its business with respect to the number of employees and the number, type, and location of its facilities;
• The type of operations, including composition, structure, and functions of the covered entity’s workforce; and
• The geographic separateness and administrative or fiscal relationship of the facility or facilities. 

What is the Interactive Process?
The employer must engage in a “timely, good faith, interactive process” to determine effective reasonable accommodations with an individual who has a known disability or medical condition and requests accommodation.  But, liability only exists if reasonable accommodation is in fact possible. It is the employee’s burden to initiate the process, usually by requesting an accommodation, and no “magic words” are required.  To prevail on a claim for failure to engage in the interactive process, an employee must identify a reasonable accommodation that would have been available at the time the interactive process should have occurred.

How Do I Prove Disability Discrimination? 

To prove their disability discrimination case, the employee must show he or she:

• Suffers from a disability;
• Is a qualified individual (can perform the essential functions of their job with, or without reasonable accommodation); and
• Was subjected to an adverse employment action because of the disability. 

What Can I Recover If I Was Terminated Because of My Disability?

If you were terminated because of a real, or perceived, physical disability, or mental disability, or in retaliation for requesting accommodation or trying to engage your employer in a timely, good faith, interactive process, you could be entitled to:

• Back Pay: an amount of money to compensate you for lost wages and benefits suffered as a result of your termination.  Back pay runs from the time you were terminated to the time of settlement or trial; 
• Front Pay: an amount of money used to compensate you for the amount of wages and benefits you could have reasonably expected to make in the future working for your employer;
• Emotional Distress: an amount of money used to compensate you for the mental pain and anguish you endured as a result of the disability discrimination, including to compensate you for your mental pain and anguish as a result of your wrongful termination;
• Punitive Damages: which is an amount of money to punish your employer if they are found to have engaged in malice, fraud, or oppression in their handling and/or termination of you; and
• Attorneys’ Fees and Costs: which is an amount of money to provide reasonable compensation to your attorneys and reimburse you/them for costs incurred as a result of prosecuting the suit. 

If you have a disability and you think you have been discriminated against because of your disability, or you need reasonable accommodation, an experienced disability attorney can help.  If you are in California, and you were fired because you asked for a reasonable accommodation, or tried to engage your employer in a timely, good faith interactive process, or because of your physical or mental disability, or perceived physical or mental disability, you need an experienced wrongful termination lawyer to help.  Wrongful termination attorney John McCarthy is nationally recognized as one of the top wrongful termination lawyers in California with serving California from San Francisco to San Diego and everywhere else. 

If you think you have been wrongfully terminated and you fit the circumstances defining disability discrimination, you should fill out our free wrongful termination case evaluation.  This free case evaluation is completely confidential.  It helps us perform ethically required conflict checks, and gives us a better sense of what’s going on, even alerting us to issues you might not be thinking about.  Each form goes straight to Attorney McCarthy’s inbox.  He makes it a point to review and respond to every inquiry, typically within 24 hours.  Responses typically schedule a free consultation, refer you to other attorneys who might be able to help, or refer you to resources to help you understand your rights, find an attorney, and even do it yourself.  If that is not right for you, the State Bar of California certifies lawyer referral sources to help Californians find qualified lawyers that best match their needs.  You can check out their website, or call (866) 442-2529. 

There are strict deadlines to file wrongful termination cases including case of overt disability discrimination. If you miss any of the deadlines you could be prohibited from recovering what you are legally entitled to.  So, act now to give yourself the best chance at success.