Disability Discrimination

Disability discrimination is the treatment of a person with a disability less favorably than a person without a disability in the same or similar circumstances. In the workplace, disability discrimination may take on several forms. It occurs when an employee or applicant is treated unfavorably by an employer because of his or her actual or perceived disability, or because he or she may have a history of a disability.

It is important to note that there are also laws in place that protect employees from discrimination based on their need to care for people who have disabilities. This may include a husband who needs to care for his wife with a disability or a mother who cares for a child who is disabled. In fact, unless undue hardship would be caused to the employer, an employer who fails to provide a reasonable accommodation to an employee or applicant who has a disability or medical condition may be breaking the law.

California workers are protected by two significant laws; the Americans with Disabilities Act (ADA) and the Fair Employment and Housing Act (FEHA). These laws work together to provide some of the strongest protections in the country for those who have disabilities that limit employment opportunities.

The ADA recognizes that people who have medical problems because they are unable to walk, hear, see or participate in other actions as well as the average person are entitled to reasonable accommodations at work. The only way that an employer can get out of making these accommodations is if they show that doing so would present them with an undue hardship.

California has been at the forefront of guaranteeing that persons with disabilities have equal access to employment. Because California disability laws are intended to allow persons with disabilities equal opportunity in employment, these laws have historically offered greater protection to employees than federal law.

For instance, the ADA defines disability as “a physical or mental impairment that substantially limits one or more major life activities.” In California, a disability is defined as an impairment that makes performance of a major life activity “difficult.”

Because of these different definitions, people in California with a wide variety of diseases, disorders or conditions would be deemed to have a disability who, under the definitions set forth in the ADA and the United States Supreme Court’s narrow interpretations of that statute, might not be considered “disabled” and therefore might be denied protection.

As mentioned above, California’s FEHA defines a covered disability as any physical or mental impairment that limits (makes more difficult) one or more major life activities such as caring for oneself, performing manual tasks, walking, seeing, working, hearing or speaking. Some types of disabilities that may be protected include but are not limited to:

• Mobility impairments not limited to paralysis or other spinal conditions;
• Immune disorders;
• Skin disorders;
• Muscular disorders;
• Respiratory disorders;
• Digestive disorders;
• Cardiovascular disorders;
• Reproductive disorders;
• Hearing, speaking, and vision impairments;
• Neurological disorders such as learning disabilities;
• Medical conditions such as cancer;
• Chronic illnesses such as diabetes or hypertension.

When interviewing job applicants, employers may not ask (verbally or on an employment application) questions about the applicant's health or medical history. Employers may ask about an applicant's ability to perform specific tasks. Also, employers may not inquire whether the applicant has ever filed a Workers' Compensation claim.

When an employee has a disability, the employer has a duty to explore all possibilities of reasonable accommodation prior to rejecting the person for a job or making any employment-related decision. An accommodation is reasonable if it does not impose an undue hardship on the employer's business. Some types of reasonable accommodation can include, but are not limited to:

• Providing leave for medical care;
• Changing job duties;
• Changing work shifts;
• Relocating a work area;
• Providing mechanical or electrical work aids;

Disabled employees may have separate rights to unpaid leave under the Federal Family and Medical Leave Act or the California Family Rights Act.

In order for an employee to prove that he or she has been discriminated against because of his or her disability, the employee must show the following:

• The employee suffers, or is perceived to be suffering, from a disability;
• The employer knew or should have known of the disability;
• The employer discriminated against the employee because of the disability;
• The employee is capable of performing the essential functions of the job with or without reasonable accommodation;

For answers to your particular questions, you should consult an attorney who specializes in employment discrimination for advice. You may also contact the DFEH for information at 1-800-884-1684.

No one should be discriminated against because of a disability. If you believe that you are a victim of workplace disability discrimination, contact us for a free consultation and let Hicks & Hicks fight for your employment rights.