WE FIGHT INJUSTICE

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Disability Discrimination

ATTORNEY

EXCLUSIVELY FOR EMPLOYEES

WE FIGHT INJUSTICE IN THE WORKPLACE

  • What Disabilities Does the Law Protect?

  • Can a Potential Employer Ask About My Disability?

  • When Can I Ask My Employer to Make a Reasonable Accommodation for My Disability?

  • What Steps Can I Take if I am Affected by Disability Discrimination?

Los Angeles Disability Discrimination Attorney

Many Californians have to deal with a physical or mental impairment that affects their day-to-day activities. Federal and state laws ensure these individuals have a fair chance to obtain and maintain employment. When an employer treats an employee or job applicant unfavorably due to a medical condition, that is considered illegal disability discrimination.

Disability discrimination is more than refusing to hire someone due to an impairment. Employers must also make a good-faith effort to meet a disabled employee’s request for reasonable  accommodation so they can do their jobs effectively. While an employer does not necessarily have to grant any requested accommodation, they cannot fire, demote, or otherwise retaliate against an employee who makes such requests.

Jamie Wright, Esq., is a California disability discrimination attorney who represents workers affected by the illegal conduct of employers. She can help you in asserting your rights under the law and if necessary, take on a current or former employer in court. While you may need to live with a disability, that does not mean you have to live with disability discrimination.

Disability Discrimination: Federal vs. State Law

There are two key laws when it comes to disability discrimination in California. The first is the Americans with Disabilities Act (ADA), a 30-year-old federal statute that forbids covered employers from discriminating against a disabled individual “in regard to job application procedures, the hiring, advancement, or discharge of employees, employee compensation, job training, and other terms, conditions, and privileges of employment.” The second law, the California Fair Employment & Housing Act (FEHA), similarly prohibits disability discrimination at the state level.

So, how do the two laws differ? For one thing, the FEHA covers more businesses. An employer is only covered by the ADA if it has 15 or more employees. The FEHA, in contrast, applies to any business with as few as five employees.

The FEHA also defines “disability” in a broader manner to cover more situations than the ADA. Similarly, while both statutes require covered employers to make “reasonable accommodation” for disabled employees, the FEHA’s obligation is more substantial. Finally, in the event of a disability discrimination lawsuit, the FEHA allows affected individuals to recover a greater amount of monetary damages than does the ADA.

What Disabilities Does the Law Protect?

In the legal sense of the word, a “disability” refers to a physical, mental, or psychological disorder that “limits a major life activity.” A physical disability may refer to a temporary or permanent condition. For example, pregnancy and childbirth may be considered a temporary disability, while the loss of hearing or eyesight would obviously be a permanent disability.

With respect to mental disabilities, the ADA and the FEHA recognize a wide variety of chronic conditions, such as clinical depression, schizophrenia, obsessive-compulsive disorder, and anxiety disorder. However, there are some mental impairments that are not considered legally protected disabilities, including sexual behavior disorders, kleptomania, and pyromania.

As noted earlier, a disability requires more than proof of a physical or mental impairment. A qualified disability must also limit one more “major life activities.” This covers two broad categories — the normal operation of bodily functions and common day-to-day activities. Impairment of a bodily function simply refers to the effect of a disability on an organ, such as your brain or respiratory system. With respect to day-to-day activities, this can mean anything from working your job to simply being able to walk normally.

Can a Potential Employer Ask About My Disability?

Disability discrimination often occurs before someone is even hired. Some employers try to use the interview or application process to “weed out” potentially disabled applicants. Such conduct violates both the ADA and the FEHA, which protects job applicants, even if they are ultimately not hired for a position.

Basically, a potential employer cannot ask you to answer any general questions related to your medical or psychological condition during an interview. Indeed, they cannot ask you point-blank if you have a disability. That said, an employer may ask if you are physically or mentally able to perform certain job-related functions. If the employer decides to extend a conditional job offer, it can also require you to undergo a medical or psychological exam, but there are two important caveats. First, such an exam must be “job-related” and “consistent with business necessity.” Second, any examination must be administered to all employees entering the “same job classification.” In other words, an employer cannot target you specifically.

When Can I Ask My Employer to Make a Reasonable Accommodation for My Disability?

If you inform your employer (or potential employer) that you have a disability, you can then ask for a “reasonable accommodation” to help you perform your job. What qualifies as a reasonable accommodation will vary based on the facts of a given situation, but in general, it can include any or all of the following:

  • modifying your work schedule;
  • restructuring the duties of your job;
  • reassigning you to another available job within the company;
  • modifying your equipment or workspace;
  • providing mechanical or electrical aids;
  • altering work-related policies or training materials;
  • permitting you to have a service dog on the employer’s premises;
  • providing you with a reader or interpreter.

Again, it is critical to emphasize that just because you ask for a specific accommodation, the employer is not legally required to say yes. What the ADA and FEHA require is for the employer to engage in a “good-faith interactive process” with you to arrive at an accommodation that will assist you while not creating an “undue hardship” for the business. And just as with deciding when an accommodation is reasonable, whether a hardship is “undue” will depend on a number of factors, such as the cost of the requested accommodation, the financial resources of the employer, and the structure of the office or job site itself.

An employer is also not required to make an accommodation if the employee is unable to perform the “essential functions” of a given job. Whether or not a function is essential will, once again, depend on a number of things. The employer’s own written job description is helpful–though not necessarily the last word–in establishing essential job functions.

Other Forms of On-the-Job Disability Discrimination

Even when an employer hires a disabled employee and offers them reasonable accommodation, there may still be other forms of subtle discrimination that occurs on the job. For instance, if a supervisor reduces an employee’s pay or hours due to a disability–even a perception of a disability–that is illegal. Likewise, if an employer fails to prevent supervisors or other employees from “making jokes” about a co-worker’s disability, that may be considered evidence of discrimination. Essentially, any actions that subject an employee to disparate treatment on the basis of a real or perceived disability is prohibited under California law.

What Steps Can I Take if I am Affected by Disability Discrimination?

If you have any reason to believe that you have been treated unfairly due to a disability, your first step should be to speak with your supervisor or a representative from your employer’s human resources department. In particular, if you need a reasonable accommodation, you are legally required to inform your employer about your disability and engage in the good-faith interactive process.

If you are unable to resolve your issues internally, then you should not hesitate to contact a qualified California disability discrimination attorney. An attorney can assist you in filing an administrative complaint with either the California Department of Fair Employment & Housing (DFEH) or the U.S. Equal Employment Opportunity Commission. It is usually necessary to go through this administrative process first before filing a civil lawsuit. In some cases, the government will take direct action against your employer to remedy disability discrimination. Should the agencies decline to take action, they will issue you a “right-to-sue” letter.

If the DFEH chooses to take up your complaint, however, it will conduct its own investigation into your allegations. The DFEH will also attempt to conduct a mediation between you and your employer, in an effort to avoid the need for a formal lawsuit. Again, should this mediation process fail, either the DFEH will file a lawsuit on your behalf or issue you a right-to-sue letter.

If I Sue My Employer for Disability Discrimination and Win, What Damages Can I Receive?

The remedies available in a disability discrimination lawsuit will depend on the nature of the employer’s illegal actions. For instance, if an employer refused to hire a job applicant due to a disability, the court can order that person hired. In more complex cases, an employee may be entitled to back pay, higher income from a promotion they were illegally denied, and compensation for their emotional distress or pain and suffering.

In a few cases, a court may go so far as to award punitive damages. Unlike other forms of civil damages that are meant to compensate an employee for their injuries, punitive damages are intended to punish egregious misconduct on the part of employers. The goal is to discourage the employer–and possibly other businesses–from committing disability discrimination in the future.

Contact California Disability Discrimination Attorney Jamie Wright, Esq., Today

Disability discrimination is a complicated area of California law. Even when you know you are a victim, you may still have many questions about your exact rights. California disability discrimination attorney Jamie Wright, Esq., can help. Contact her office today to schedule a consultation.

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