Protect Your Vital Legal Rights in a Workplace Disability Discrimination Case
Eldessouky Law at (714) 409-8991 represents individuals with disabilities who have experienced workplace discrimination. The stark reality is that experiencing workplace discrimination in any one of its various forms can have devastating consequences. Workplace disability discrimination is a particularly insidious form of this type of employment-related mistreatment. With this in mind, there are some essential facts and factors associated with disability discrimination as part of taking proactive steps to protect your vital legal rights.
What Is Disability Discrimination in California?
At its fundamental essence, workplace disability discrimination occurs when a worker is treated unfairly or unequally at work because of a disability. Legally speaking, this is technically known as a worker experiencing disparate or even negative treatment at work because of physical or mental disability.
Beginning in the 1980s, the Americans with Disabilities Act (ADA) enhanced the level of protection afforded to a worker and others with some type of disability. In basic terms, employers cannot discriminate against employees because of a worker’s disability.
Examples abound in regard to the manner in which employees with disabilities are discriminated against in the workplace:
- Basing hiring, firing, or promotion decisions on an employee’s disability
- Unfair or unequal job assignments
- Unequal pay or benefits
- Not providing reasonable accommodations or other ADA violation
Unfair treatment of an employee, because he or she has a disability, is illegal. This includes employees who have a history of a disability, such as cancer that is in remission, or impairment that will only last up to six months. Employees who have a spouse with a disability are also protected against discrimination and harassment at work under the law.
Commonly Misunderstood Rules for Disabled Employees in California
The California Fair Employment and Housing, or FEHA, offers more protection to our state’s employees than the federal Americans with Disabilities Act provides. This is evident in the manner in which each of these legal schemes defines disability in the first instance.
The ADA defines disability as a mental or physical impairment that substantially limits major life activity or multiple life activities.
The FEHA defines disability as a physical or mental impairment that makes any major life activity difficult. This law does not require a substantial limitation of life activity.
Examples of disabilities under these laws include:
- Biological challenges including loss of a limb
- Chronic diseases including HIV/AIDs, diabetes, hepatitis or clinical depression, and bipolar disorder
- Impaired senses, including eyesight, hearing, speech
- Intellectual or cognitive disabilities
- Pregnancy and childbirth
- Specific learning disabilities
Since the coverage is expanded for employees in California, it is important to also know what is not covered by the FEHA:
- Compulsive gambling
- Sexual behavior disorders
- Unlawful use of controlled substances resulting in impairment
Commonly Misunderstood Rules for Employers Interacting with Disabled Employees
The employer and employee relationship can be confusing when a disability is involved. With that said, there are some questions an employer can ask of an employee in regard to a disability. Examples of permissible questions include:
- Ask an applicant about his or her ability to perform job-related functions
- Respond to a request for reasonable accommodation, and whether it creates an undue hardship to the business and its operation
- Ask for medical certification of an employee or applicant’s need for reasonable accommodation
- Be liable for negligently allowing an employee with a disability to be harassed by coworkers
- Be in violation of the law if an employer believed – mistakenly or otherwise – that the employee had a disability or potential disability
On the other hand, examples of questions an employer cannot ask of an employee with a disability include:
- Ask about the nature or severity of a prospect or employee’s disabilities
- Require an applicant to take a medical or psychological exam that is not routinely given to all employees or prospects
- Pay an employee less because of their disability
- Restrict privileges, terms, or conditions of their job because of their disability
An Interactive Process: Figuring Out “What’s What”
When a worker is injured, employers are not legally permitted to simply say, “Now that you’re injured, you’re no longer qualified to perform your essential duties. I’m going to have to let you go.” Before an injured worker can be lawfully reassigned or terminated, an employer must engage – in good faith – in an “interactive process.” Under California law, an employer who fails to engage in a timely, good-faith interactive process may be held legally liable for this failure.
What exactly is an interactive process? Under California’s Fair Employment and Housing Act, employers have a duty to provide reasonable accommodations for their employees with known disabilities unless doing so would cause the employer undue hardship. A reasonable accommodation is a change to an employee’s job duties or work environment that can help to provide them with the ability to perform the essential functions of the position. An “interactive process” is the back and forth between employers and employees that assesses which reasonable accommodations, if any, can and should be granted to the injured worker. These accommodations may include:
- Intermittent medical leave so that the worker can receive ongoing treatment
- Workplace accessibility improvements
- Flexible work schedule and/or transition to remote work
- Job restructuring
- Reassignment to an alternative yet comparable position
- Providing a paid or unpaid leave during treatment and recovery
When required by law, “reasonable accommodations” should be:
- Effective in enabling an applicant with a disability to have an equal opportunity to be considered for the desired job, or
- Effective in enabling an employee to perform the essential functions of the job the employee holds or desires, or
- Effective in enabling an employee with a disability to enjoy equivalent benefits and privileges of employment as are enjoyed by similarly situated employees without disabilities.
Both California’s Fair Employment and Housing Act and the Americans with Disabilities Act require an employer and an employee to participate in a timely, good-faith interactive process in determining what, if any, reasonable accommodations exist that would enable a disabled employee to remain employed.
The trend in California’s courts is to impose liability on employers for failing to engage in the interactive process when a reasonable accommodation existed that would have enabled the employee to perform the essential functions of the job. (Fair Employment and Housing Act; Barnett v. U.S. Air, Inc.; Jensen v. Wells Fargo Bank)
Is It Always Necessary to Initiate an Interactive Process?
There are scenarios wherein an employer is not required to engage in an interactive process with a disabled employee or applicant. What triggers the need for an interactive process is knowledge on the part of the employer that the employee may have a condition that might qualify as a disability resulting in some limitations that may require an accommodation. Per Cal. Code Regs. §11064 – 11073, once the employer is in possession of this knowledge, the process requires the employer and employee to identify and assess potential accommodations that would enable the employee to perform the essential functions of the position. If the initial accommodation is failing, the employer is obligated to continue with the interactive process to determine if any other accommodations exist that will permit the employee to perform the essential functions of the job.
An interactive process is only required when needed to identify or implement an effective, reasonable accommodation for an employee or applicant with a disability. If an employer is willing to accommodate a specific request on the spot or the employee is not in need of any accommodations to perform their essential job functions and/or to enjoy the benefits of their employment, no interactive process is required.
Per Cal. Code Regs. tit. 2 § 11069: An employer or other covered entity is required to initiate an interactive process when:
- An applicant or employee with a known physical or mental disability or medical condition requests reasonable accommodations, or
- The employer or other covered entity otherwise becomes aware of the need for an accommodation through a third party or by observation, or
- The employer or other covered entity becomes aware of the possible need for an accommodation because the employee with a disability has exhausted leave under the California Workers’ Compensation Act, for the employee’s own serious health condition under the CFRA and/or the FMLA, or other federal, state, employer or other covered entity leave provisions and yet the employee or the employee’s health care provider indicates that further accommodation is still necessary for recuperative leave or other accommodation for the employee to perform the essential functions of the job.
Per these same state laws, once an interactive process has been initiated, an employer (or other covered entity) is required to engage in this process as follows:
- The employer or other covered entity shall either grant the applicant’s or employee’s requested accommodation, or reject it after due consideration, and initiate a discussion with the applicant or employee regarding alternative accommodations.
- When the disability or need for reasonable accommodation is not obvious, and the applicant or employee has not already provided the employer or other covered entity with reasonable medical documentation confirming the existence of the disability and the need for reasonable accommodation, the employer or other covered entity may require the applicant or employee to provide such reasonable medical documentation.
- When the employer or other covered entity has received reasonable medical documentation, it shall not ask the applicant or employee about the underlying medical cause of the disability, but may require medical information and second opinions from other health care providers.
- If the information provided by the applicant or employee needs clarification, then the employer or other covered entity shall identify the issues that need clarification, specify what further information is needed, and allow the applicant or employee a reasonable time to produce the supplemental information.
- When needed to assess a requested accommodation or to advance the interactive process, the employer or other covered entity shall analyze the particular job involved and the essential functions of the job.
- When needed to assess a requested accommodation or to advance the interactive process, the employer or other covered entity may consult experts.
- In consultation with the applicant or employee to be accommodated, the employer or other covered entity shall identify potential accommodations and assess the effectiveness each would have in enabling the applicant to have an equal opportunity to participate in the application process and to be considered for the job; or for the employee to perform the essential function of the position held or desired or to enjoy equivalent benefits and privileges of employment compared to non-disabled employees.
- The employer or other covered entity shall consider the preference of the applicant or employee to be accommodated but has the right to implement an accommodation that is effective in allowing the applicant or employee to perform the essential functions of the job.
- If reassignment to an alternate position is considered as an accommodation, the employer or other covered entity may ask the employee to provide information about his or her educational qualifications and work experience that may help the employer find a suitable alternative position for the employee.
Interactive Process Considerations (In a Nutshell)
If an employee chooses not to disclose their disability to their employer and doesn’t require a reasonable accommodation in order to perform their essential job-related duties and enjoy the benefits of their employment, there is no need for an interactive process. However, if an employee’s injuries have made it difficult or impossible to engage in work successfully, it is important for an employer to initiate an interactive process. This process allows employers to better understand how to support an employee’s need for accommodation and to engage in a solution-focused dialogue.
Most of the time, the interactive process helps to ensure that disabled workers can remain employed. In the event that reasonable accommodations can’t be made for a worker without causing an employer an undue burden, it may be possible to retrain the worker, to transition them to a vacant position, or to otherwise facilitate ongoing gainful employment of the affected worker in an altered capacity.
Employers who fail to engage, in good faith, in the interactive process may be held legally liable for their inaction. Depending on the nature of the worker’s circumstances, failure to adequately engage in an interactive process may serve as evidence of disability discrimination.
Reasonable Accommodations – When Are They Required?
If an employer can accommodate an employee’s disability, in ways that aren’t cost-prohibitive, the employer is required to do so. (Fair Employment and Housing Act) However, employers are not required to accommodate every medical condition. To receive the protection of California’s reasonable accommodation laws, the condition must qualify as a disability. A condition may be considered a disability if it limits a major life activity. A condition limits a major life activity if it makes the achievement of that activity difficult. Courts interpret the phrase major life activity broadly. Per subsection (m) of Cal. Gov. Code § 12926, major life activities include:
- Social activities
- Basic life functions (walking, eating, sleeping, etc.)
- Physical activities
- Mental activities
More specifically, “physical disability” includes, but is not limited to, the following:
- Having any physiological disease, disorder, condition, cosmetic disfigurement, or anatomical loss that does both of the following:
- 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, skin, and endocrine.
- Limits a major life activity.
- Any other health impairment that requires special education or related services.
- Having a record or history of a disease, disorder, condition, cosmetic disfigurement, anatomical loss, or health impairment that is known to the employer.
- Being regarded or treated by the employer or other entity covered by this part as having, or having had, any physical condition that makes the achievement of a major life activity difficult.
- Being regarded or treated by the employer or other entity covered by this part as having, or having had, a disease, disorder, condition, cosmetic disfigurement, anatomical loss, or health impairment that has no present disabling effect but may become a physical disability.
- “Physical disability” does not include sexual behavior disorders, compulsive gambling, kleptomania, pyromania, or psychoactive substance use disorders resulting from the current unlawful use of controlled substances or other drugs.
Failure to engage in the interactive process and failure to provide disabled workers with reasonable accommodations can serve as forms of disability discrimination. California law protects workers from this form of mistreatment broadly, but workers are not always granted access to adequate education about this subject. As a result, they may not always be aware that they are being unlawfully discriminated against when their needs for reasonable accommodations are dismissed.
Too often, workers only seek legal guidance for discrimination-based concerns when they are terminated as a result of their disabilities. However, workers may have solid grounds to seek legal and financial recourse “even if” they remain employed but are denied reasonable accommodations and/or good-faith engagement in the interactive process on the part of their employers.
If you believe that you are the victim of workplace discrimination based on a disability, the employment law legal team at Eldessouky Law at (714) 409-8991 is here for you. You can connect with us any time that is convenient for you to schedule an initial consultation and case evaluation. There is no charge for an initial consultation with a skilled, experienced disability discrimination lawyer from our firm. Our legal services are provided in English, Spanish, and Arabic.
Eldessouky Law also makes an attorney fee pledge to you when it comes to your case itself. Our firm never charges an attorney fee unless we obtain a favorable settlement or judgment for a client.