Disability Discrimination

What is disability discrimination? Workplace disability discrimination is when an company fires, demotes, or lays off an employee because of his or her disability, despite the fact that the employee can do the job. It can also occur when an employee requests a reasonable accommodation so that they can do the job, but the request is denied. This page unpacks California’s employment law regarding disabilities and details what employees can do to protect themselves.

As sad as it sounds, discrimination against disabled workers is extremely common. The purpose of this page is to provide employees with a basic knowledge of their rights, and give them a roadmap of what to do if they are a victim. As always, the information on this page should not be a substitute for discussing your case with a discrimination lawyer or law firm. The Bohm Law Group has represented dozens of workers with a disability. Don’t be afraid to contact one of our employment lawyers.

The Basics

Simply put, California’s laws make it illegal for companies to fire a disabled employee if they are able to do the essential functions of their job. To take it one step further, companies are not allowed to terminate a disabled employee even if they are unable to do the essential functions of their job, but could if provided with a reasonable accommodation. These laws can be found in the California Fair Employment & Housing Act (“FEHA”) § 12940(a) & (m).

FEHA offers more protection to California’s residents than the Americans with Disabilities Act (“ADA”). It offers broader protections, applies to companies with less employees, and the definition it gives to “disability” is not as limiting. To the same extent, FEHA is stronger than Title VII, which caps employee’s damages. These are a couple reasons why many consider California’s laws to be employee friendly.

What Qualifies as a Disability Under California Law?

California’s disability discrimination laws place “disabilities” into three categories: physical disability, mental disability, and medical conditions.[1] But what follows below is broad. What constitutes a disability is a complicated question and a difficult one for non-lawyers to figure out.

A “physical disability” is,

any physiological disease, disorder, condition, cosmetic disfigurement, or anatomical loss that” affects one or more body systems and limits a major life activity.[2]

Limiting “a major life activity” means that it “makes the achievement of the major life activity difficult.”[3] This can include chronic or episodic conditions (HIV/AIDS, hepatitis, diabetes, heart disease, etc.) or other physical limitations (broken bones, hypertension, polio, etc.), and pregnancy related disabilities. Unfortunately, pain alone does not count as a disability unless it limits a major life activity. If your disability was not listed above, you should contact disability discrimination lawyers as that is an incomplete listing at best.

A “mental disability” is,

[h]aving 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.[4]

Examples of mental disabilities can include, but are not limited to, autism spectrum disorders, bipolar disorder, clinical depression, mental illness, schizophrenia, specific learning disabilities, and other chronic or episodic conditions like post-traumatic stress disorder.

Finally, a “medical condition” is,

any health impairment related to or associated with a diagnosis of cancer or a record or history of cancer, or genetic characteristics.

Genetic characteristics are when an individual has a gene or inherited characteristic that is associated with a statistically increased risk of the development of a disease or condition.

What are Reasonable Accommodations?

We have an entire webpage dedicated to reasonable accommodations. But below is a solid summary. If you want to go deeper, click here to learn more about reasonable accommodations.

Just because an employee is disabled, doesn’t mean they can’t do the job. At times, all the employee needs is a small tweak to his or her job. This is what employment law calls a “reasonable accommodation.” It is illegal for employers “to fail to make reasonable accommodation for the known physical or mental disability of an . . . employee.” The only exception to this is if the accommodation will “produce undue hardship to the corporation’s operation.”[5]

The main thing about getting a reasonable accommodation is that you must ask for the accommodation! If you do not request the accommodation, the company cannot be held liable for not providing it to you. This raises another point with regards to reasonable accommodations; it is also illegal for an employer to retaliate against you for requesting reasonable accommodations.[6] However, asking for a doctor’s note is allowed.

The Interactive Process

Aside from it being illegal for employers to fire employees due to disabilities, and being required to provide disabled workers with reasonable accommodations, they must also work with disabled employees to find a reasonable accommodation. This is known as the “interactive process” and can be found in California Government Code 12940(n). It is illegal for the employer to “fail to engage in a timely, good faith, interactive process with the employee or applicant to determine effective reasonable accommodations, if any, in response to a request for reasonable accommodation by an employee or applicant with a known physical or mental disability or known medical condition.”

What do Disability Discrimination Lawyers do for Victims?

The American public’s knowledge of what lawyers do has been misled by the media. This holds true for disability discrimination attorneys as well. There is a lot of work done behind the scenes in your disability discrimination in the workplace lawsuit. So what is it that your disability discrimination attorney does in between you communications with him?

After your disability discrimination attorneys and you have decided to work together and have signed all the paperwork, they will begin to collect the documents and evidence you have including a timeline of events, any text messages, emails or documented communications, and your employee file (if you have it). Your attorney will then file your lawsuit with the court by creating and submitting a “complaint.” This complaint contains some basic facts of the case, describing who committed these bad acts, what the bad acts were, and the harm done.

Once the complaint is filed, your disability discrimination attorneys have a time limit to “serve” your employer with the complaint. Now, your employer has to respond to the complaint with their “answer.” Also, your employer will probably try to get the case thrown out around this time.  Once your attorney beats these “demurrers,” the “discovery” phase begins.

The discovery process is when your disability discrimination attorneys and the opposing counsel exchange a variety of types of evidence. There are questions chosen by your attorney (special interrogatories), questions required to be answered by the state (form interrogatories), a request by the attorneys for the other party to admit certain facts, and requests for production of documents (such as emails, business records, etc.). This is also the time in when depositions are taken. Depositions are interviews, under oath, that your attorney will accompany you to.

After discovery has been completed, your disability discrimination attorney will have a good sense of their case, and the opposing counsel as well, which means this is when most settlements occur. Both attorneys will be involved in employment mediation and mandatory settlement conferences with a judge to see if a pre-trial resolution is possible. If not, your case will go to trial.

What Can You be Awarded in a Disability Discrimination Lawsuit?

If your disability discrimination attorneys wins your trial, you are able to be compensated for the wages that you would have made if you had not been subjected to disability discrimination. For instance, if your salary was $50,000 per year, but you were terminated because of a disability, you would be able to recover the amount of money you would have earned but for the illegal firing.

Another form of compensation that you may be able to recover from your disability discrimination in the workplace case is pain and suffering (also known as “emotional distress”). Compensation for anxiety, depression, and mental suffering are examples of these damages. The disability discrimination laws try to put you in the place you would have been if not for the discrimination, and thus may pay for past and future emotional distress.

One of the most powerful provisions of a disability discrimination in the workplace claim is the ability for you to recover attorney’s fees. California’s legislatures realized that the lost wages and emotional distress damages could be rather small, and added this to incentivize disability discrimination attorneys to take disability discrimination cases.

The Statute of Limitations

For the most part, you (or your attorneys) have one year from the date you were terminated to acquire a right-to-sue letter. Usually, your attorney will get this for you, but if you already have one be sure to let your attorney know. Upon receiving a right-to-sue letter, you have one year to file your case in court or arbitration.

These timelines are different for public entities. In those cases, the statute of limitations may be as little as six months! For this reason, it is important that you contact disability discrimination attorneys as soon as possible.

Footnotes:

[1] CA Government Code § 12920

[2] CA Government Code § 12926(m)(1)

[3] CA Government Code § 12926(m)(1)(B)(ii)

[4] CA Government Code § 12926(j)(1)

[5] CA Government Code § 12940(m)(1)

[6] CA Government Code § 12940(m)(2)