Disability Discrimination (FEHA)

Disability Discrimination (FEHA)

Just as ADA prohibits discrimination in the work place based in an employee’s disability, California’s Fair Housing and Employment Act (“FEHA”) prohibits disability discrimination as well. This statute however received serious changes when on September 30, 2000, Governor Gray Davis signed Assembly Bill “ AB 2222” legislation that significantly expands protection for disabled workers in California beyond the protections then afforded by the federal Americans with Disabilities Act of 1990 (“ADA”) [42 U.S.C. Sec.12101 et seq.] into law. The new law modified sections of the Fair Employment and Housing Act (“FEHA”), [Gov’t Code Section 12940], which is the California statute that prohibits discrimination in employment. AB 2222 went into effect on January 1, 2001. The new law greatly enahcned and broadened the definition of “disability” in both physical and mental cases. Under AB 2222, and Gov. Code Sec 12940, the definitions of “mental disability” and “physical disability” simply require that the disability “limit” a major life activity — not “substantially limit,” as required by the ADA. As a result, more mental and physical impairments will qualify as disabilities under California law than under the federal law, this is due to the fact that the “substantial” standard has been rejected. AB 2222 also lowers the California disability standard by covering disabilities that make the achievement of a major life activity difficult, rather than the standard previously set by the California Supreme Court that the disability had the disabling effect of making achievement unusually difficult.

Orange County and Los Angeles discrimination lawyers of Employment Law Team ™are very familiar with the definitions of disability used by courts and can assist our clients in determining whether their particular case subjects them to protection under FEHA’s disability protection and discrimination statues. Call us at (877) 529-4545 or contact us for more information.

The changes made to FEHA expanded protections for disabled employees in the following three ways: (1) it provides broader definitions of what constitutes a physical and/or mental disability or medical condition; (2) it imposes a requirement on employers to engage in “a timely, good faith, interactive process” to determine reasonable accommodations for their disabled employees; and (3) it prohibits disability-related inquiries or examinations by employers, except under certain circumstances. Each of these changes, and their effect on California employers, is discussed below. Whereas under the ADA, a disability is a physical or mental impairment that substantially limits one or more of the major life activities of an individual. The FEHA amendments in AB 2222 make it clear, however, that a different standard applies in California to determine whether an employee is disabled and therefore entitled to the protections of the disability discrimination laws. As a result of these changes to the explicit definitions of disabilities, a broader range of disabilities will be protected in California under the FEHA. In the past, under ADA case law, the courts evaluated impairments based on the severity and duration of the ailment. Now the courts can and will consider impairments that are less severe and of a more limited duration to qualify as disabilities in California. Under this lower standard, a broken arm, a strained back, or significant stress could all qualify as protected disabilities in California. Alcoholism and/or drug addiction are recognized disabilities under the law. Putting up with employees who use alcohol and drugs in the workplace, i.e. being drunk or under the influence of drugs, or missing work or being late because of a hangover/binge is not however considered a reasonable accommodation and/or may subject you to immediate termination. However, treatment for alcoholism or drug addiction may be considered a reasonable accommodation for people with the disease of addiction. The key is to seek help before you are terminated for the behavior. An employer may not discriminate or harass someone because of their status as a recovering alcoholic/drug addict.

Orange County and Riverside discrimination lawyers of Employment Law Team ™are very familiar with how and when the “interactive process” is to be utilized bvy employers and can assist our clients in determining whether their particular case subjects them to protection under FEHA’s disability protection and discrimination statues. Call us at (877) 529-4545 or contact us for more information.

What’s more under the new California law, whether or not a potential disability or ailment limits a major life activity must be considered without regard to measures which may mitigate those limitation, i.e. medications, assistive devices, or reasonable accommodations, unless the mitigating measure itself limits a major life activity.” Therefore, in California, employees will be considered disabled and entitled to protection under the FEHA, even if their impairments have been remedied by medicine, eye glasses, or their work environment. One must note however that to be considered a disabling condition, generally, a disability or limitation must be, or be perceived as, longstanding or permanent except for pregnancy disabilities which are covered under a separate law. Temporary disabilities may provide for leave under the California Family Rights Act or under FMLA.

“Interactive Process” Defined

Prior to the passage of AB 2222 and modification of FEHA, employers were required under the FEHA to make a reasonable accommodation for the known physical or mental disability of an applicant or employee, unless that accommodation produced undue hardship to the employer’s operation. The new law mandates that employers engage in a timely, good faith, interactive process with employees to determine effective reasonable accommodations, if any, when an applicant or employee with a known physical or mental disability or medical condition requests one. This process is sometimes referred to as the “interactive process.” It is unlawful for a California employer refuse to of fail to engage in the “interactive process.” This requirement means that once the employer has notice that an employee is claiming a disability (even before a disability determination has been made), the employer must engage in a dialogue in a timely manner with the employee to determine what kind of a reasonable accommodation can be made. An employee also has a duty to engage in the good faith accommodation process. To that end, an employer can request medical certification of the disability and may seek to interact with the employee’s medical providers as part of the reasonable accommodation process to determine what would be a suitable accommodation. Employees who fail to engage in a good faith interactive process, and who loose their job as a result, may have no chance of recovery. If there is a breakdown in the interactive process leading to discharge or demotion, courts look to see who was responsible for the breakdown in the process. Therefore, it is very important that this process be documented.

Orange County and San Bernardino discrimination lawyers of Employment Law Team ™are very familiar with protections extended to employees under FEHA’s disability protection and discrimination statues. We have helped many clients in receiving a fair settlement for their employer’s illegal actions in violation of disability discrimination laws. Call us at (877) 529-4545 or contact us for more information.

Questions That Employers Can Ask

Whether an employer can ask disability-related questions or require medical examinations depends on whether the applicant has been given a conditional job offer or is employed. Employers may require a medical or psychological examination or make a medical or psychological inquiry into a current employee’s condition if the examination is job-related and the examination is consistent with business necessity. Employers may also conduct voluntary medical examinations (including voluntary medical histories) which are part of an employee health program available to employees at that worksite. Employers may require applicants to take a medical or psychological examination or make a medical or psychological inquiry into an applicant who has received an offer if the examination is job-related and consistent with business necessity; and all entering employees in the same job classification are subject to the same examination and not just the employees suspected of being disabled. An employer can never ask an applicant who has not been offered a job whether he or she has any mental or physical disabilities or demand that the applicant take a medical or psychological exam.

Conclusion

A disabled person who is other wise qualified (has the education, training, etc, required by the position) to perform the essential job functions, with or without an accommodation, must be treated equally with all other applicants and/or employees. essential job functions are generally defined as those job functions which the position requires.

Orange County and San Bernardino discrimination lawyers of Employment Law Team ™are very familiar with protections extended to employees under FEHA’s disability protection and discrimination statues. We have helped many clients in receiving a fair settlement for their employer’s illegal actions in violation of disability discrimination laws. Call us at (877) 529-4545 or contact us for more information.

Labor Code

California Labor Code § 98.6 makes it unlawful to an employer to discharge and employee or discriminate against an employee and or applicant for engaging in certain conduct protected under the Labor Code. Thos activities include but are not limited to: Political Activities (Labor Code § 1101); whistleblowing (Labor Code § 1102.5). Applying for Workers compensation is protected under Labor Code § 132(a) so an employee can be confident that his or her filing of a workers compensation claim will not result in termination and if it does it will be a violation of the code. Of course it is illegal to file fake claims and such filings could expose the employee to criminal liability.

California’s Constitution

Article I, § 8 of the California Constitution states that a person may not be disqualified from ensuing a business opportunity or profession because of sex, race, creed, color or national or ethnic origin. Therefore, affected employees, independent contractor or potential business partners can rely on this Article as well as the other laws states in this website should they be disqualified for an opportunity due to one of the enumerated factors. In such a case, this provision of the California Constitution can be a basis for a “public policy” or “tortuous discharge” claim which can be independently or as a part of a FEHA complaint.

Unruh Civil Rights Act

California’s Unruh Civil Rights Act codified under Civil code § 51, prohibits business entities from denying “full and equal accommodations” to anyone on the basis of “sex, race, color, religion, ancestry, national origin, disability, or medical condition.” Although this law however does not apply to the employee-employer relationships, it can be invoked by independent contractors.

If you are an employer or an employee in the Orange County, Los Angeles County, Riverside County, San Bernardino County, Alameda county, Ventura county or San Diego County areas and would like to discuss your labor law related questions with an employment attorney or employment lawyer experienced in the filed of sexual harassment, overtime claims, discrimination, retaliation or whistle blowing please, call (877) 529-4545 for a free consultation with an Employment Law Team,