Disability Discrimination

Both California and Federal law provides strong protections to workers with physical or mental disabilities. It is illegal to discriminate against an employee because of a disability. The Americans with Disabilities Act is federal law that prohibits disability discrimination on the job. States also have their own anti-discrimination laws that apply to disabled workers. In California, this law is called the Fair Housing and Employment Act. The FEHA offers even more protection than the ADA to California workers who experience disability discrimination.

What Conditions are Recognized as a Disability?

FEHA prohibits discrimination against individuals that have a “physical disability, mental disability, or medical condition.”

• “Medical condition” means either cancer or genetic characteristics
• “Physical disability” includes but is not limited to physiological and anatomical conditions. It also includes, but is not limited to HIV/AIDS, epilepsy, diabetes, multiple sclerosis, hepatitis, and heart disease.
• “Mental disability’ includes any mental or psychological disorder, such as intellectual disability, organic brain syndrome, emotional or mental illness or learning disabilities that limits a major life activity.

In some circumstances, an employee may also sometimes be considered to have a disability if he or she had a prior history of these conditions (even if he or she had recovered), or if his or her employer (even incorrectly) thinks that person is disabled. The FEHA prohibits an employer from discriminating against an employee based on his or her association with a disability. An employer, for example, cannot discriminate against an employee who requires a medical leave of absence to donate a kidney.

Examples of various yet reasonable accommodations an employer is required to provide for an employee:

• An employer may be required to change the workplace or policy.
• An employer may need to provide time off from work for employees that may need it due to a disability.
• An employer may need to add a wheelchair ramp or provide a larger computer screen to employees who suffer from certain vision impairments.
• An employer may need to provide a chair to a disabled employee or provide an employee additional time to complete a task.
• An employer may need to offer part-time or modified work schedules.
• An employer may need to reassign an employee to a vacant position.
• An employer may need to provide additional training
• An employer may need to modify supervisory methods.
• An employer must reasonably accommodate any employee who wishes to voluntarily enter and participate in a alcohol or drug rehabilitation

If an employee needs an accommodation, it is important he/she promptly makes his request to the employer. Once the employer is on notice of the disability and of the need for accommodations, the employer has a duty to engage in a timely and good faith interactive process with the employee to determine which accommodations can be made for the employer. The employer is expected to understand the employee’s restrictions and determine who to accommodate those restrictions. Although the employee is expected and encouraged to provide suggestions regarding his or her accommodations, it is ultimately up to the employer. An employer that fails to adequately engage in the interactive process, will be found in violation of the violation.

Impermissible Job-Related Questions

Employers cannot conduct medical or psychological examinations of prospective employees or current employees, or inquire about the existence, nature or severity of disabilities, subject to limited exceptions.

Employers are prohibited from asking job applicants about their disabilities. Prohibited questions include but are not limited to:

• Do you have any disabilities?
• Have you ever been treated for a disability?
• What medications are you taking?
• What you ever filed for workers compensation?
• Have you ever sued an employer for disability discrimination?
• Have you ever been hospitalized?

What Can an Employee Recover for Disability Discrimination?

Compensation for disability discrimination can include:

• Reinstatement of the employee’s job
• Damages for lost income
• Damages for emotional distress and/or punitive damages

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