California Disability Discrimination in Employment

Laws protecting the disabled from employment discrimination have been strengthened in recent years. Actions by Congress and the Equal Employment Opportunities Commission (EEOC) have responded to court decisions that favored the interests of employers over the right of disabled employees to have equal access to work.

The Americans with Disabilities Act (ADA) and its California counterpart require employers to grant reasonable requests to accommodate disabilities. Employers are also required to engage disabled employees in a dialog to make a good-faith attempt to fashion an accommodation that will meet the employee’s needs. Too many employers ignore that obligation or fail to understand it.

Current or former employees and job applicants who believe they were the victim of unlawful discrimination because of a disability can get legal advice from an employment discrimination lawyer at KKG Law. Our office serves current and former employees in Oakland, San Jose, Fairfield, and all other Bay Area communities.

Disabilities Protected by Law

The ADA defines a person with a disability as an individual who has a physical or mental impairment that substantially limits one or more major life activities. The ADA was amended in 2008 to make clear that Congress does not intend that standard to be demanding. The amendment also made clear that people can be considered disabled even if they use ameliorative aids (such as hearing aids or medication) other than ordinary eyeglasses to help cope with a disability.

Major life activities include such things as:

caring for oneself
performing manual tasks
seeing
hearing
eating
sleeping
walking
standing
lifting or bending
speaking
breathing
learning
reading
concentrating or thinking
communicating
working in a broad range of jobs

This list is not exhaustive. According to the EEOC, activities such as driving, operating electronic devices, and interacting with others might be regarded as major life activities.

A major life activity also includes the operation of a major bodily function, such as the immune system, normal cell growth, digestive, bowel, bladder, neurological, brain, respiratory, circulatory, endocrine, and reproductive functions. Cancer, an HIV infection, diabetes, epilepsy, and brain damage causing a cognitive impairment are all examples of conditions that affect a major bodily function and will nearly always be regarded as a disability.

According to the EEOC, a physical or mental impairment does not need to prevent or severely or significantly restrict a major life activity to be considered “substantially limiting.” The question is whether the impaired employee has more difficulty performing a major life activity than most people. Effort required and pain experienced while performing a major life activity are among the relevant considerations.

How the condition is limiting and the duration of the limitation are also relevant factors in considering whether a disability exists. The amendments make it clear, however, that even a temporary condition can, under some circumstances, be regarded as a disability.

The ADA also protects individuals who have a record of having a disability. For example, if someone was disabled by cancer and is now in remission, an employer cannot discriminate against the employee because of that condition, even if it is no longer disabling.

Finally, the ADA protects individuals who are regarded as having a disability, even if that perception is mistaken.

Disability Discrimination

The ADA protects employees and job applicants from discrimination in the terms and conditions of employment, including:

Hiring
Firing
Promotion
Wages, benefits, and other compensation
Discipline
Training

Those protections extend to all qualified individuals with a disability. A “qualified individual” is an individual who can perform the essential functions of a job, with or without an accommodation.

The inability to perform marginal or incidental job duties because of a disability does not make a disabled employee unqualified for a position. The question is whether the employee can perform essential functions of the job if the employee is provided with a reasonable accommodation (or without any accommodation).

Reasonable Accommodations

The ADA requires an employer to provide reasonable accommodation to a qualified individual with a disability who requests one. The accommodation provided need not be the accommodation that the employee requests, but it must be effective.

A reasonable accommodation is a modification or adjustment to a job or work environment that will allow a qualified individual with a disability to perform essential job functions. Accommodation also includes any adjustments needed to assure that a qualified individual with a disability has rights and privileges in employment equal to those of non-disabled employees.

A reasonable accommodation might include:

Reassigning incidental or marginal tasks to a different employee
Modifying a work schedule
Providing longer break times or periods of leave
Modifying the employee’s work area to make it accessible
Providing equipment to make performance of the job possible

Employers are not required to make an accommodation if it would impose an undue hardship on the operation of the employer’s business. “Undue hardship” is defined in terms of the difficulty or expense of implementing the accommodation and will vary according to the size and assets of the employer versus the cost and burden of the accommodation. Resentment that nondisabled employees might feel about an accommodation is not generally regarded as an undue hardship.

Employers are expected to engage in an interactive process with employees to arrive at an effective accommodation if one is reasonably available. Saying “no” without exploring the issue with the employee will generally violate the ADA.

Harassment

Harassing an employee because of a disability violates the ADA if the harassment is so severe or pervasive that it creates a hostile work environment.

Harassment by a boss, corporate officer, manager, or supervisor with the authority to affect the terms and conditions of employment will usually violate the ADA if it creates a hostile work environment.

Harassment by co-workers will violate the ADA if it creates a hostile work environment and if the employer knew or should have known about it. An employer’s failure to enact a policy that prohibits harassment and creates a mechanism for reporting harassment is often strong evidence that the employer should have known about a hostile work environment.

Taunts or offensive comments directed at a disability, as well as a refusal to cooperate with accommodations that an employer-provided, are examples of harassment. Occasional teasing will probably not create a hostile work environment, but frequent and repeated teasing might. A disability discrimination lawyer at KKG Law can help a disabled employee decide what to do after experiencing harassment at work.

Retaliation

ederal and California laws prohibit employers from retaliating against employees who complain or file legal claims, about employment discrimination or harassment. Conduct that is defined as retaliatory is broader than the discriminatory acts discussed above. Our retaliation page explains retaliation and its remedies in more detail.

Helping Victims of Employment Discrimination and Harassment

Employees who have experienced employment discrimination or harassment related to a disability, or who have not received a reasonable accommodation for a disability, may be entitled to:

Back pay
Compensation for emotional distress
Reinstatement to a position or front-pay
Court orders prohibiting future harassment or discrimination
Court orders requiring employers to provide a reasonable accommodation
Punitive damages

An employment lawyer at KKG Law can help victims of race or national origin discrimination, harassment, or retaliation. We represent current and former employees in Oakland, San Jose, Fairfield, and all other Bay Area communities. Contact us at .