FAQs Regarging Disability Discrimination and Reasonable AccomodaTIons in the workplace

1. Can an California employer refuse to hire someone because of a disability?

Generally, it is unlawful in California for an employer to discriminate against an applicant because of a physical or mental disability. Employment discrimination based on a real or perceived disability is a violation of law.

Under the California Fair Employment and Housing Act (FEHA), it is illegal for an employer to discriminate against an individual based on mental disability or physical disability. The ADA and California law also protect individuals with a disability from discrimination in the workplace. It is a violation for an employer to treat an employee less favorably because of a history of disability, or because it was believed to have a physical or mental disability.

2. What disabilities are protected?

The California Fair Employment and Housing Commission intends the definition of “disability” to be construed as broadly as possible under the Fair Employment and Housing Act (FEHA). Disability under the FEHA applies to mental and physical disabilities.
A “mental disability”, according to the FEHA, includes, but is not limited to, any mental or psychological disorder or condition that limits a major life activity.  
Mental disabilities may include chronic diseases, such as:

• Bipolar disorder

• Clinical depression

• Schizophrenia

• Obsessive-compulsive disorder

• Anxiety disorder

• Dementia

• Intellectual disabilities

• Specific learning disabilities

 A “physical disability” includes disfigurements or diseases that affect the body and limit major life activities. This includes: 

• Impaired eyesight

• Impaired hearing

• Impaired speech

• Chronic diseases

• Hepatitis

• HIV/AIDs
• Diabetes
• Loss of a limb
• Cancer
• Pregnancy and childbirth

3. What do I do if I think I am being discriminated against because of my disability?

Most discrimination in the workplace is subtle or takes place behind closed doors. It is not always easy to tell if someone is being discriminated against because of a disability. Employers are aware that outward discrimination could expose the company to a lawsuit.
However, there may be signs of discrimination because of an employee’s disability. Signs of possible discrimination may be:

• Sudden changes in job performance reviews

• Exclusion from meetings and events

• Change in work duties or workload increases

• Reduced hours or reduced pay

• Different rule enforcement involving workers with disabilities

• Failing to put a stop to jokes about disabilities in the workplace

• Making fun of an individual’s physical disability or speech

If you feel some of these things are going on, you can talk to HR at your company or contact an employment lawyer to discuss your situation.

 4. What does a reasonable accommodation for a disability mean?

Employers must provide “reasonable accommodation” for applicants and employees who are unable to perform the essential functions of the job because of their disability.
Employers must also engage in a timely, good-faith interactive process with employees in need of a reasonable accommodation. This is to determine whether a reasonable accommodation would allow the applicant or employee to complete the necessary functions to perform the job.
A reasonable accommodation is any measure that would allow the employee or applicant to perform the essential job functions. This could include:

• Restructuring the job

• Modifying work schedules

• Part-time scheduling

• Reassignment to a vacant position

• Adjustments to training materials

• Providing readers or interpreters

• Modifying equipment

• Modifying work policies

• Allowing a service dog to support the employee1415

An employer must provide reasonable accommodations unless the employer would produce “undue hardship.”  
In determining undue hardship, a number of factors are taken into consideration, including:

1. The nature and cost of the accommodation needed.

1. The overall financial resources of the facilities involved in the provision of the reasonable accommodations, the number of persons employed at the facility, and the effect on expenses and resources or the impact otherwise of these accommodations upon the operation of the facility.

1. The overall financial resources of the covered entity, the overall size of the business of a covered entity with respect to the number of employees, and the number, type, and location of its facilities.

1. The type of operations, including the composition, structure, and functions of the workforce of the entity.

1. The geographic separateness or administrative or fiscal relationship of the facility or facilities.

5. Can I sue my employer in California for disability discrimination?

Under California law, employees who are discriminated against because of their disability can file a lawsuit against their employers for unlawful discrimination.

An employee generally has to file a complaint with the DFEH or EEOC before they can file a lawsuit in civil court. This requires obtaining a “right to sue” notice before your case can be taken to court.

The complaint will be served upon your employer and anyone else named in the lawsuit as defendants. The defendants will respond to the complaint with a formal answer responding to the allegations, and the case may proceed through litigation. At any point before the end of a trial, the employer and employee can negotiate a settlement and settle the case out of court.

6. Can I be retaliated against for filing or being a witness in a discrimination lawsuit?

California employees cannot be retaliated against or given any discipline because they report or if they are a witness in any workplace discrimination against a co-worker or other employee.
California law protects employees who are retaliated against for opposing workplace harassment, opposing disability discrimination against other employees, reporting disability discrimination or workplace harassment, or for assisting with DFEH investigations or government inquiries.
If an employer retaliates against an employee for reporting FEHA violations or other employment law violations, the employee may be able to file a:

• complaint with the DFEH, or

• lawsuit against the employer for retaliation or wrongful termination.

An employer cannot fire an employee for filing a workplace discrimination or harassment lawsuit. Firing an employee for filing a workplace discrimination claim is a retaliatory action, and may be considered illegal and would result in a potential lawsuit for wrongful termination.