Disability Discrimination

California employees are protected against disability discrimination both federally, under the Americans with Disabilities Act (“ADA”), and at the state level under the California Fair Employment and Housing Act (“FEHA”).


The Americans With Disabilities Act

Under the ADA disability discrimination occurs when an employee is treated less favorably because of their disability.  The ADA protects the disabled as well as those with a history of disability.  In addition, the law also protects those who have relationships (e.g. husband-wife, parent-child) with disabled individuals.  Discrimination is prohibited in all such instances.

Read more about the [ADA].


The California Fair Employment and Housing Act

The FEHA is substantially similar to the ADA in that it protects employees from being discriminated against on the basis of their disability.

A prospective plaintiff must demonstrate: (1) they suffers from a disability; (2) they can perform the essential functions of their job with or without reasonable accommodation; (3) they were subjected to an adverse employment action, such as a termination, demotion or denial of an available job; and (4) the adverse action was as a result of their disability.  Brundage v. Bank (1997) 57 Cal. App. 4th 228, 236.

California law defines “physical disability,” broadly and includes physiological conditions which affect the neurological or musculoskeletal body systems and which limit a major life activity.  In fact, disability protections under FEHA even extend to “perceived” physical disabilities.

Read more about the [FEHA].


The Duties of the Employer

Whether under the ADA or FEHA, in dealing with a disabled employee, the employer has a duty to engage in a back-and-forth conversation with the employee, referred to as the “interactive process”.  Following such conversations the employer must “reasonably accommodate” the employee.  These duties are taken very seriously and lie at the center of protecting disabled employees.  As one court put it, “[t]he interactive process is at the heart of the ADAs  process and essential to accomplishing its goals. It is the primary vehicle for identifying and achieving effective adjustments which allow disabled employees to continue working without placing ‘undue burden’ on employers.” Barnett v. U.S. Air, Inc. (9th Cir.2000) 228 F.3d 1105

Under the law, a reasonable accommodation is any such accommodation that can be made for a disabled employee that will allow them to perform their position notwithstanding the fact that they are disabled.  Often times the exact nature of a reasonable accommodation will be based off the disabled employee’s treating physician’s recommendations.  For example, the employee’s doctor may proscribe the employee from lifting items above a certain weight or standing for long periods of time because of their disability.

Under both federal and state law an employer is required to adhere to such reasonable accommodations unless they can demonstrate that either (1) the proscribed activity is part of the “essential functions” of the position or (2) the reasonable accommodations would constitute an “undue hardship”.  An essential function is such an activity that is so intertwined within the employee’s position such that they simply must be able to perform that task if they are able to perform the position.