Disability Discrimination

Federal and California Law

The Federal Americans With Disabilities Act (ADA) is the Federal Law that makes it illegal for employers to discriminate on the basis of a disability.

It makes it illegal for an employer to discriminate against a qualified individual with a disability in job application procedures; the hiring, advancement, or discharge of employees; employee compensation; job training; or other terms, conditions, and privileges of employment, because of the individual's disability.

California protects disabled workers with the Fair Employment and Housing Act (FEHA). While the Americans with Disabilities Act is similar in protection to the Fair Employment and Housing Act, FEHA is more protective of employees in several important aspects.

First, under the ADA, an individual is disabled if substantially limited in a major life activity. Under FEHA, however, an individual is disabled if limited in a major life activity. Thus, FEHA requires a lower standard of limitation in order to warrant protection against discrimination.

Second, under the ADA, 'work' is not necessarily a major life activity. Under FEHA, work is always a major life activity, even if the disability only limits your ability to do one particular job. Again, FEHA provides greater protection to those with disabilities. The inability to perform one job due to a disability is sufficient to prove a limitation in a major life activity.

Third, under the ADA, an individual will be evaluated in a mitigated state. For example, consider an individual with a vision problem. Under the ADA, that person's vision disability will be evaluated in the mitigated state (with glasses). As a result, that person is less likely to be regarded as disabled. Under FEHA, however, an individual will be evaluated in the unmitigated state, effectively making it easier for an individual to be considered disabled.

Qualified Individual With a Disability

For the employee to be eligible to make a claim of disability discrimination under the ADA or FEHA, he must be a "qualified individual with a disability." These means that he must be able to do the job. For instance, a person with no hands would not be qualified to be a typist. (However, see below discussion on "reasonable accommodation".) If the employer didn't give him the job, it wouldn't be discrimination. It's just that the person simply isn't qualified.

"With a disability" means that the worker is actually disabled. For an injury, disease, or their ailment to be a "disability" under the law, it must "substantially limit one or more major life activities." A mere annoyance is not enough. The disability must actually interfere with a person's life.

In determining whether or not a person actually has a disability, the Courts pay close attention to whether or not the ailment affects the person's job and ability to earn a living. So, even if the disability doesn't affect most areas of life, if it affects the person's employment, it is more likely to be considered a disability.

Perceived Disability

It is also unlawful to discriminate against a person who is perceived to have a disability. If the employee is not disabled, but the employer believes he is, and discriminated against him, that is also illegal.

In this circumstance, it is not necessary to determine if the employee is a "qualified individual" with a disability. However, the Court may consider whether or not the person would have been a qualified individual if he actually had the disability that the employer perceived him to have. The law is not entirely clear on this issue.

Reasonable Accommodation for An Employee With a Disability

Reasonable Accommodation is the idea that even if a person is disabled, and even if that disability may make it seem like he or she can't do a job, the employer must consider whether or not a "reasonable accommodation" can be made. A "reasonable accommodation" is when the employer modifies the job duties, provides some extra help, or takes some other measure to ensure that the person can still be able to do the job.

For instance, let's say a person in a wheelchair wants a job in an office that is on the second floor. There are no elevators in the building. To accommodate he worker, the employer could install an elevator. But is that a "reasonable accommodation"? Is it reasonable to expect the employer to spend that kind of money? Probably not, particularly if it's just one small business.

But there might be other possibilities. Perhaps the potential employee's job is really just talking on the telephone, selling products. Maybe the job can be done from home, and there is no need to even be in the office. Isn't it reasonable to ask the employer to let the person work at home? It may be.

Employees have to ask for reasonable accommodations. Once they do, the employer has the right to consider the requests, and make counter-offers that the employer might see as more reasonable. If the employer and employee can't agree, then the employee might want to consider bringing suit. However, to win, the judge or jury will have to find that the employee's request was reasonable, or that the employer's counter-offers were not sufficient.

At the law offices of Lipow & Harris, we take great pride in fighting for the rights of those who have been discriminated against in the workplace. If you believe you have been the victim of workplace discrimination on the basis of your sex, disability, race, religion, national origin, sexual orientation or age, contact our discrimination attorneys in Encino, Los Angeles at (818) 905-0507 for a free consultation.