Los Angeles Disability Discrimination Lawyer
Unfortunately, disabilities are a grim reality of life, whether they be physical or mental. Even more so when the disability impairs your work life. Fortunately, employees in California are given the utmost protection from Disability Discrimination. Both Federal and California state law as recognized the right to lead a meaningful and purposeful life at work free from discrimination.
Which Laws Protect Me From Disability Discrimination?
Both Federal and State law offer significant protections for employees against disability discrimination.
Under California law, the Fair Employment and Housing Act ("FEHA") prevents employers from taking certain actions against disabled employees. In order to hold an employer liable for disability discrimination at work under the FEHA, a few things need to be satisfied.
First, you must determine whether your disability is recognized under the FEHA statute. Usually, most physical disabilities such as blindness and paraplegia are recognized disabilities; some mental disabilities, such as anxiety and clinical depression are also recognized under FEHA. See below for a full list of disabilities that qualify under FEHA.
Second, the employer must have either been given notice of the disability. Fortunately, this does not mean that you must have directly informed your supervisor of your disability. So long as your disability was known (or should have been known) to your employer through observation or notice from a third party, that would be sufficient.
Third, the employer must provide you with reasonable accommodations so that you can perform the essential functions of your job. Note that the employer is not required to do so if he can prove that the accommodation would impose an undue hardship on the business operation or would severely endanger the health of other employees. If you are not sure whether your requested accommodation qualifies as an "undue hardship," contact us today.
There are also several Federal laws that protect employees with disabilities from discrimination. The most notable one is the Americans with Disabilities Act ("ADA"). The ADA is very similar to FEHA in its protections, aside from a few key differences:
- Covered Employers: Under the ADA, all employers in the private sector with 15 more or more employees are covered while under the FEHA, employers with 5 more or more employees are covered.
- Degree of Disability: The ADA requires that the physical or mental impairment substantially limit the major life activity, while there is no such requirement under FEHA. In other words, FEHA is much broader when it comes to covering certain physical and mental disabilities.
- Limit on Damages: under the ADA, damages are limited to compensatory and punitive damages while under the FEHA there are no caps on civil damages.
How Do I Know If I Am Considered Disabled?
In California, a person is considered disabled if he or she exhibits one or more of the following characteristics:
- Has a physical or mental impairment that limits one or more of the major life activities
- Has a record of an impairment
- Is regarding as having an impairment
- Is regarded or treated by the employer as having a condition that is not presently disabling but may become a physical disability
- Has any health impairment that requires special education or related services
What Is Considered a “Disability” in California?
The definition of “disability” in California includes:
(1) Mental disabilities that limit a major life activity. Examples include:
- Emotional or mental illnesses
- Cognitive disabilities
- Clinical depression
- Bipolar disorder
- Autism spectrum disorders
- Post-traumatic stress disorder
- Obsessive compulsive disorder
(2) Physical disabilities, including, but not limited to, having any anatomical loss, cosmetic disfigurement, or physiological disease, disorder or condition that does both of the following:
(a) Affects one or more of the following body systems: neurological, immunological, musculoskeletal; special sense organs; respiratory, including speech organs; cardiovascular; reproductive; digestive; genitourinary; hemic and lymphatic; circulatory; skin; and endocrine; and
(b) Limits a major life activity
Examples of physical disabilities include blindness, deafness, missing limbs, mobility impairments, cerebral palsy and conditions such as HIV/AIDS, hepatitis, epilepsy, diabetes, multiple sclerosis and heart disease.
(3) Special Education disabilities, such as significant difficulties in the use of listening, speaking, reading, writing, reasoning or mathematical abilities. Examples of special education disabilities include: brain injury, dyslexia, and developmental aphasia.
(4) A record or history of disability. This includes individuals who may not be currently disabled, but who previously suffered an impairment.
(5) Perceived disabilities. Individuals may fall into this category if their employers regard them as having or having had a physical or mental condition that has no present disabling effect, but which may become a disability in the future.
(6) Medical conditions, including cancer-related impairments or genetic characteristics that put an individual at increased risk for disease or disorder
Associated Disability Claims - Employers are also prohibited under both FEHA and the ADA from discriminating against an employee because of his or her association with a person who has, or is perceived to have, a disability.
What is Not Considered A "Disability" Under FEHA?
Not all disabilities or illnesses are protected under FEHA, while some are specifically excluded by statute. Some common examples of disabilities that are not protected include:
- Common cold
- Small cuts
- Compulsive Gambling
Am I Entitled to Accommodations For My Disability?
State and federal disability laws require covered employers to reasonably accommodate an employee’s disability if the employer knows of the disability, unless the employer can demonstrate that the accommodation would impose an undue hardship.
What is a "reasonable accommodation?" - A “reasonable accommodation” is any modification or adjustment in a job, an employment practice or the work environment that allows an individual with a disability to enjoy an equal employment opportunity. It can also be any modification or adjustment that is effective in enabling an employee to perform the essential functions of the job the employee holds or desires or to enjoy equivalent benefits and privileges of employment that similarly situated employees without disabilities enjoy. However, what is reasonable depends on the nature of the work the employee is engaged in; therefore, what is reasonable is up for debate.
When is my employer required to provide a reasonable accommodation? - Even before providing reasonable accommodations, the employer is required to engage in something called the “interactive process.” Once an employer is made aware of the employee's qualifying disability, either directly from the employee or through observation or by a third party, the employer and the employee will exchange essential information to determine what type of accommodation is reasonable to allow the employee to perform the essential functions of his or her job. An employer is not required to make any modification, adjustment or change to a job or policy that would fundamentally alter the essential functions of the job.
What happens during the interactive process? - During the interactive process, the employer must timely, and in good faith, grant the employee's requested accommodation or reject it after careful consideration, and initiate discussion with the employee regarding alternative accommodations. The employer must also request medical documentation, but may not ask about the underlying medical causes of the disability. The employer may, however, request a second opinion. The employee must provide medical documentation to prove the existence of a physical or mental disability. In some circumstances, the employee may be required to provide certain information, such as educational background, to determine whether alternative accommodations are necessary.
Call one of our disability discrimination lawyers today to find out whether your boss is illegally denying accommodations. If your employer fails to provide you with reasonable accommodations, or fails to engage in the interactive process with you, you may be entitled to compensation and to bring a lawsuit for "Failure to Provide Reasonable Accommodations" and "Failure to Engage In The Interactive Process."
What Are Some Examples Of Reasonable Accommodations?
The term “reasonable accommodation” includes, but is not limited to:
- Providing personal assistants or attendants to help a qualified individual with a disability perform an essential job function;
- Making existing job facilities used by employees readily accessible to and usable by disabled individuals (this may include providing accessible break rooms or restrooms, or reserving parking spaces)
- Job restructuring
- Part-time or modified work schedules
- Reassignment to a vacant position for which the individual is qualified
- Acquiring or modifying equipment or devices
- Modifying examinations, training materials or policies
- Providing assistive aids such as qualified readers or interpreters
- An unpaid extension of a paid or unpaid leave
- Allowing employees to bring assistive animals to the worksite
- Changing supervisory methods (e.g., dividing complex tasks into smaller parts)
- Providing additional training
- Permitting an alteration of when and/or how an essential function is performed
- Providing an adjustment or modification of examination, training materials or policies
- Modifying an employer policy
- Working from home
What Are Some Examples Of Unreasonable Accommodations?
Reasonable accommodation does not require your boss to:
- Find a different position for an applicant who is not qualified for the position he or she originally sought
- Lower quality or quantity standards to make an accommodation
- Provide personal use items, such as glasses or hearing aids
What If My Boss Refuses To Accommodate My Disability?
Unfortunately, this happens very frequently. If your boss has refused to accommodate your disability, you may have a lawsuit on your hands. Failure to reasonably accommodate an employee is against the law, and an employee may be able to recover damages. An employee can also bring a claim for failure to engage in the interactive process.
Additionally, under FEHA, the mere act of requesting a reasonable accommodation is protected activity and an employer cannot discriminate or retaliate against a person for requesting the accommodation - regardless of whether the request was granted. See Failure to Accommodate claims.
Some Questions You May Be Asking Yourself
- Can my boss retaliate against me for requesting an accommodation that he does not like?
- What should I do if my boss is forcing me to perform job duties that are in violation of my work restrictions?
- Can my boss fire me for having ADD?
An employee whose request for accommodation is rejected by an employer MUST make a timely complaint to the appropriate enforcement agency, or the claim is barred. This is known as a statute of limitations.
Examples of Previous Disability Discrimination Lawsuits
- Fox v. General Motors Corp .- an employee claimed that his supervisors and co-workers were harassing him due to his non-work-related back injury. His supervisors used profane language, berated him for his inability to perform certain tasks, deliberately assigned him work beyond his medical restrictions, instructed other employees not to speak to disabled employees and refused to allow him to test for another position in the company. The court found that the employee was entitled to a harassment claim under the ADA and FEHA.
- Barrie v. State of California - an employee suffered from allergic rhinitis, which is a condition where exposure to chemicals, such as cleaning agents and perfumes, caused him to have extreme allergic reactions. Initially, the employer informally accommodated the employee by asking employees not to wear perfumes and asking the cleaning staff to not use certain cleaning products. Eventually, however, a new supervisor stopped enforcing the accommodations. A surprise inspection from a year later confirmed chemicals and other scented products were still in use in his work area. The jury awarded the employee over $3 million in damages.
- Caldera v. Department of Corrections and Rehabilitation - In a 2018 disability harassment case, a California appellate court upheld a $500,000 jury award to an employee whose supervisor and coworkers mimicked his stutter. The employee alleged that fellow employees and his supervisor mocked or mimicked his stutter in front of other employees at least a dozen times over a two-year period. The jury ruled in favor of the employee, finding the harassment was both severe and pervasive, and awarded him $500,000.
- Axel v. Field Motorcars: A car dealership employee who worked for his employer for over ten years was distraught when he was diagnosed with cancer. He decided to undergo holistic treatments, which his employer characterized as “not...real doctor’s treatment.” Subsequent to his diagnosis, the employee was fired for something that occurred 10 years prior. In fact, the Judge believed the plaintiff when he contended that the dealership did no investigation and that the real reason of the firing was the cancer diagnosis. The jury awarded the employee $1,200,000.
- Leggins v. Rite Aid Corp: An employee sustained serious injuries when he was beaten during a robbery at his company. He returned to work seven months later but suffered severe pain that sometimes made it difficult for him to walk and use his left arm and leg. The employee nevertheless worked full time but informed his employer that he needed to take medication for the pain. Subsequently, he was fired one day for closing the store 14 minutes early. The jury later awarded the plaintiff $3,769,128 in damages.
- Hayes v. SkyWest Airlines: An employee had kidney disease and had to spend 9 hours per night on dialysis. He later had to resign from his position for health reasons and returned to his former position, which did not require him to perform strenuous physical tasks. Plaintiff took the Family and Medical Leave Act (FMLA) leave and returned to find out the lower position no longer existed. Subsequently, he was fired. The jury in this case awarded the employee $2,500,000.
- Timothy Patrick Green v. The City Of South Pasadena: After giving 18 years to the force, in which he was described by his superiors as the “best” when it came to community policing, a police officer was fired because of Attention-Deficit/Hyperactive Disorder (ADHD). He alleged that he was not given reasonable accommodation. The department offered a bogus reason as to his firing – because he failed to give a citation to someone who was speeding years earlier. While the department initially offered $25,000 to settle, the officer made a smart move and rejected that offer. The jury later awarded the officer $4,800,000.
- EEOC v. United Parcel Serv., Inc. In 2009, UPS was sued for Disability Discrimination because of certain policies regarding their maximum leave policies. The policy failed to provide employees with reasonable accommodations and maintained an "inflexible" clause that automatically fired employees when they reached 12 months of leave, without an interactive process. The case settled for over $2,000,000, with the proceeds going to over 90 employees.
- EEOC v. IDEX Corporation: A manager for a fluidics based company who had successfully performed his job was diagnosed with cancer in 2010. The manager continued to perform his job well, even while undergoing treatment. During the period of his treatment, however, supervisors repeatedly asked the manager invasive questions about his illness and questioned his ability to perform job tasks. The manager was eventually fired because of his disability and the company decided to settle the case for $380,000.
- An employee failed to provide medical documentation to prove she was not HIV-positive, and was then fired when she failed to provide such documentation. The manager approached the employee and informed her that she had "heard" she was HIV-positive. The employer twice demanded that the employee provide documentation to show she was not HIV-positive because she thought the diagnosis would hurt business. The employee was then fired; however the parties agreed to settle the case for $139,000.
- EEOC v. UPCO, Inc.: A manufacturer of sucker rods and accessories for the oil and gas industry offered a temporary employee a full-time position so long as she passed a third-party medical examination. The third party medical examiner refused to grant her approval because of the side of effects a certain medication she was taking, even though her personal doctor wrote a letter stating that her medication would not impair her ability to do her job. The manufacturer decided to settle the case for $106,000.00.