Disability Discrimination

Disability Discrimination

In California, people are protected against discrimination and harassment on the basis of actual or perceived disability. The Dolan Law Firm has represented numerous disabled people in achieving access and/or compensation when they have been treated unlawfully. The Dolan Law Firm employees attorneys who, themselves, suffer from disabilities and take disability discrimination seriously.

WHAT IS A DISABILITY COVERED UNDER THE LAW?

In California you are considered disabled if you have a condition affecting you which limits one or more major life activities, i.e. the condition or disability limits (makes more difficult) your ability to engage in a major life activity such as breathing, seeing, walking, caring for yourself, working, social activities, reading, eating, digesting, hearing, speaking, etc. Disabilities can be physical or mental such as developmental disorders, organic brain syndrome, emotional or mental illness, or specific learning disabilities, that limits a major life activity. They can be the result of items that are apparent to the eye such as being wheelchair bound, using a cane, being disfigured, having an amputated body part, or they can be subtle, not readily apparent such as heart problems, berating difficulties, depression, anxiety, gastrointestinal difficulties, sleep apnea, etc.

To be considered a disabling condition, generally, a disability or limitation must be, or be perceived as, longstanding or permanent (the exception being pregnancy disabilities which are covered under a separate law click here. Temporary disabilities may provide for leave under the California Family Rights Act or Family Medical Leave Act.

WHAT ARE YOUR LEGAL RIGHTS?

A disabled person who is other wise qualified (has the education, training, etc, required by the position) to preform the essential job functions, with or without an accommodation, must be treated equally with all other applicants and/or employees.

The essential job functions are those core job functions which the position requires. For example, a fireman/firewoman has an essential job function of being able to run, lift and carry. A person who’s disability prevented them from these essential job functions is not otherwise qualified. Likewise, piolets require visual ability as a bona fide occupational qualification.

An accommodation is some tool, device, equipment, assistance, and/or modification of a non essential job function so as to make it possible, or easier, for a disabled person to perform their essential job functions. Examples include larger computer monitors or electronic or manual readers for sight impaired people, TTD devices for deaf people, sign language interpreters, modification to facilities and workstations for wheelchair access, flexible time schedules, tele-commute agreements, use of animal assistants, restructuring of non essential job functions, ability to attend medical appointments, etc.

Employers have an obligation to provide reasonable accommodations. They do not have to provide the accommodation preferred by an employees and they only have to provide accommodations that do not create an undue hardship on the economics and/or workplace functioning of the employer. Whether an accommodation is reasonable or places an undue hardship on the employer takes into account the size and economic capacity of the employer as well as the cost, expense, and disruption associated with the accommodation.

The law requires that once an employer is made aware of an employees disability and/or any workplace difficulties associated with a disability, the employer, and the employee, have a duty to engage in a good faith interactive process where they must meet and discuss potential accommodations. An employer who fails to engage in a good faith interactive process is in violation of the law and may be subject on damages for their violation of the law.

An employee also has a duty to engage in the good faith accommodation process. To that end, an employer can request medical certification of the disability and may seek to interact with the employees medical providers as part of the reasonable accommodation process to determine what would be a suitable accommodation. Employees who fail to engage in a good faith interactive process, and who loose their job as a result, have no right to recovery.

If there is a breakdown in the interactive process leading to discharge or demotion, the courts look to see who was responsible for the breakdown in the process. Therefore, in any situation where you are interacting as part of an accommodations process, it is important to document, in writing, your participation. That documentation should be copied to your supervisor or HR.

Employers can not discriminate against a current or potential employees on the basis of a disability. They may not ask as part of a pre-employment questionnaire if you are disabled. An employer, who has determined that you are qualified, who has offered you a position, may then inquire what if any accommodations you may require.

An employer may decline to offer you a job, or remove you from a job, if your disability creates a legitimate health risk to others, For example, it has been considered lawful to preclude epileptic, who experience seizures, from operating busses, trains, etc., because of legitimate health risks. These risks must, however, be legitimate and not merely speculative.

Alcoholism and/or drug addiction are recognized disabilities under the law. Current use of alcohol and drugs in the workplace, i.e. being drunk or under the influence of drugs, or missing work or being late because of a hangover/binge is not however considered a reasonable accommodation and/or may subject you to immediate termination. However, treatment for alcoholism or drug addiction may be considered a reasonable accommodation for people with the disease of addiction. The key is to seek help before you are terminated for the behavior. An employer may not discriminate or harass someone because of their status as a recovering alcoholic/drug addict. Therefore, an employer learning that an employee is going to AA or NA meetings may not demote, terminate, or otherwise take adverse employment action because of the employees status as a recovering alcoholic/addict. Indeed, permission to go to meetings/therapy may be a reasonable accomodation.

If you relate to an employer that you are disabled, you are entitled to a reasonable expectation that your employer will keep that medical information confidential and distribute it only to people who need to engage in a good faith interaction or otherwise provide an accommodation.

It is unlawful to retaliate against an employee who requests an accommodation. If you feel that you have been retaliated against, document that, in writing, and send a complaint to your management and/or human resources.

CAN YOU QUIT IF CONDITIONS ARE INTOLERABLE

The law recognizes that sometimes conditions get so bad that people have no reasonable alternative but to quit their employment rather than endure continued unlawful conduct. An employee can not just quit and sue because of one simple incident. The conditions must be of such severity and frequency that a reasonable person would thing that they have no alternative and that they were in effect, constructively terminated. You should first report the conditions through your company’s complaint procedure, where possible, before you quit or your rights to recover damages may be reduced. For more information on constructive wrongful termination, click here.

WHAT TO DO IF YOU HAVE BEEN TREATED UNLAWFULLY

Many companies have policies regarding anti discrimination and harassment in their company handbooks. Likewise, they may have reporting requirements which require that you follow a certain channel of communication in requesting an accommodation and/or reporting harassment, discrimination and/or retaliation. You should follow these procedures and document your actions in writing. Failure to follow these procedures may lead to a denial of your legal right to recover certain damages like punitive damages.

You have a limited period of time to act to protect your rights. Failure to act promptly may eliminate your rights to take legal action. For more information on these statutes of limitations, click here.

If you believe that you are being discriminated against or harassed because of your disability contact The Dolan Law Firm for a free case evaluation.

An individual who has suffered unlawful conduct, inc California, in violation of their rights under the Fair Employment and Housing Act (such as discrimination and or harassment based on membership in a protected classification) must file a complaint with the Department of Fair Employment and Housing (DFEH), generally within one year of the conduct (there are limited exceptions in some cases) or they may lose their right to pursue legal action for this conduct. Information on, and forms provided by, the DFEH and its complaint process can be found at http://www.dfeh.ca.gov/complaint.asp.