Disability Discrimination Lawyers
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California Disability Discrimination Law Firm
California has strong protections for those with medical, physical, or mental disabilities under the Fair Employment and Housing Act (FEHA). The FEHA prohibits employment discrimination and harassment based on a person’s disability or perceived disability and prohibits retaliation for exercising a FEHA right, such as filing a complaint about discrimination.
Employment Discrimination Based on Medical, Physical, and Mental Disability
The FEHA covers mental, and physical disabilities as well as medical conditions (defined as either cancer or genetic characteristics) which includes, but is not limited to, HIV/AIDS (regardless of whether the conditions are presently disabling).
However, the FEHA does not include disability discrimination protections for sexual behavior disorders, compulsive gambling, kleptomania, pyromania, or psychoactive substance abuse disorders resulting from the current illegal use of drugs.
The law also requires employers to reasonably accommodate individuals with mental or physical disabilities unless the employer can show that to do so would cause an undue hardship.
California’s FEHA Law Provides Stronger Protections Than Federal Law
The FEHA provides broader protection for persons with disabilities than federal law. Under California law, employers with five or more employees must follow the FEHA. California also has broader definitions of mental disability, physical disability, and medical condition than the federal law does.
Under California law, a disability must only “limit” a major life activity. The disability does not have to involve a “substantial limitation,” as under federal law, to be considered a disability.
Whether a condition or disability “limits” a major life activity is determined regardless of any mitigating measure, such as medication or prosthesis, unless the mitigating measure itself limits a major life activity.
Reasonable Accommodation
An employer is required to interact with an employee to explore all possible means of reasonably accommodating a person prior to rejecting the person for a job or making any employment-related decision.
The need for accommodation may arise from a mitigating measure, such as medication taken for the primary disability. An accommodation is reasonable if it does not impose an undue hardship on the employer’s business.
A reasonable accommodation can include, but is not limited to:
Changing job duties or work hours
Providing leave
Relocating the work area
Providing mechanical or electrical aids
An employer may obtain help from government agencies and outside experts to determine whether accommodation is possible.
However, if you are unable to perform the essential functions of the job and no reasonable accommodation exists that would enable you to perform the “essential functions” of the job, the FEHA may allow them to legally terminate your employment.
Independent Medical Opinion
An employer must allow an applicant the opportunity to submit an independent medical opinion if there is a dispute as to whether the person can perform the essential functions of a position with or without reasonable accommodation.
Failure to allow the submission of an independent medical opinion may be a separate violation of the law.
Employer Medical Exams
An employer may also conduct voluntary medical examinations, including medical histories, as part of an employee health program. However, this information must be retained separate and apart from employment and personnel records. Employers may not penalize employees for declining to participate in voluntary medical examinations.
Restrictions on Employers
The FEHA prohibits employers from either verbally or in writing:
Requiring any medical or psychological examination or related inquiry of any applicant or employee prior to making an offer of employment
Inquiring directly or indirectly as to whether an applicant or employee has a mental or physical disability or medical condition
Inquiring about the nature and severity of a mental or physical disability or medical condition
However, an employer may inquire into the ability of an applicant to perform job-related functions and may respond to an applicant’s request either with, or without, a reasonable accommodation.
Once an employment offer has been made to an applicant, but before the start of duties, an employer may require a medical or psychological examination. However, the examination or inquiry must be job related and consistent with business necessity and all entering employees in the same job classification must be subject to the same examination or inquiry.
An employer cannot discriminate against an employee or job applicant because:
Of a fear of a possibility of future harm to the person or to others
The exception is if the person would create an imminent and substantial danger to self or others by performing the job and no reasonable accommodation exists that would remove or reduce the danger
An employer’s insurance rates may rise
Potential Remedies and Damages You Can Receive
If the court finds that discrimination has occurred, it can order remedies such as:
Damages for emotional distress from each employer or person in violation of the law
Hiring or reinstatement
Back pay
Front pay
Changes in the policies or practices of the employer
Punitive damages
Reasonable attorney’s fees and costs