WE REPRESENT AND ADVISE EMPLOYERS IN WORKPLACE DISPUTES
What is and isn’t considered to be a disability under FEHA?
Are All Los Angeles Area Employers Subject to These Laws?
As an employer, what are the best practices to avoid discrimination?
What are the employer’s defenses to an employee’s disability claim?
Disability Accommodations for California Employees
Discriminating against an employee on the basis of disability is illegal in California and across the United States. The Americans With Disabilities Act (ADA) protects disabled Americans and requires employers to make “reasonable accommodations” for those with serious disabilities. However, an employer is not required to hire an employee who cannot perform the tasks related to the job. This creates a very fuzzy situation that is complex for both employers and employees. The following will clarify an employer’s responsibility to disabled applicants.
The Americans With Disabilities Act and Fair Employment and Housing Act
Laws related to civil rights are enacted at the federal, state, and even municipal level with individual cities drafting their own protections. The Americans with Disabilities Act is federal legislation. It is thus inherited by every state in the country, including California. California’s anti-discrimination laws are much more aggressive, which is why many claims are filed under the Fair Employment and Housing Act (FEHA) as opposed to the Americans with Disabilities Act.
Here we will focus on FEHA as opposed to the ADA.
What is a Disability Under FEHA?
FEHA includes both physical and mental disabilities. Mental disabilities include both psychiatric illnesses and intellectual deficits.
The text of FEHA includes these forms of disability:
- Any physiological disease, disorder, or condition
- Any cosmetic disfigurement or anatomic loss
- Intellectual deficits
- Psychiatric conditions
Basically, what an employer needs to know is that a physical disability is just about anything that impairs the individual’s ability to do some life activity. A mental disability requires special consideration of behavior or special education services.
What is Not Considered a Disability Under FEHA?
If you are asking this question, you should err on the side of caution and contact us for information about your specific situation. FEHA probably considers whatever you are asking about a disability, but disabilities cannot cause a person to behave illegally. Therefore, there are some conditions that are not considered disabilities under California law. These include:
- Sexual behavior disorders
- Compulsive gambling
- Illegal drug use
Sexual behavior disorders tend to result in sexual harassment claims which is a violation of the spirit of the law. If an employee were able to claim that their sexual behavior disorder made them act in an untoward manner, an employer should fire that employee without fear that they will raise a sexual behavior disorder discrimination case against them. Similarly, an employee cannot claim that their theft of company funds was the result of drug or gambling addiction.
Are All Los Angeles Area Employers Subject to These Laws?
Any California employer with five or more employees is subject to the anti-discrimination laws laid out by FEHA.
Lawsuits Filed by Disabled Employees Against Employers
There are two major types of lawsuits that disabled employees file against their employers. The first is discrimination lawsuits and the second is hostile work environment or harassment lawsuits.
- What is a discrimination lawsuit? Employers may not consider a person’s disability unless the disability makes it impossible for the individual to do their job. Impossible is the key word here. Employers are required to make “reasonable” accommodations for an employee with a disability. Reasonable accommodations do not include accommodations that would cost the company millions or even thousands of dollars. Reasonable accommodations include basic allowances that other employees are not afforded.
- What is a hostile work environment lawsuit? A hostile work environment lawsuit is an allegation made by an employee that they have been harassed (on an ongoing basis) by a supervisor or other employees. Since all employees are entitled to do their work in a safe workplace free of harassment, an employer can be held liable for allowing that environment to persist.
Employer Defenses to Disability Discrimination in California
Having a lawsuit filed against your company for discrimination is a bad look. Most of these lawsuits can be avoided simply by maintaining transparency in your hiring and promoting procedures and considering the qualifications of an employee above any other factor. When this happens, a happy workplace ensues where every employee feels valued and believes that their hard work will be rewarded. So, by the time the lawsuit has been filed against your company, you have already lost control of the situation, and it is now in the hands of an arbitrator, judge, or jury.
Viable defenses to disability discrimination claims include:
- Incapacity to perform work-related duties – An employer is not expected to redesign their entire office or vastly change the duties of the job for a prospective employee. They are required to make basic changes within their means. It is therefore legal to argue that a person’s disability disqualifies them for consideration of the position.
- Employee is a danger to self or others – An employee with a specific disability may not be able to perform the duties of their job without significantly endangering those around them. Employers are not expected to hire such an employee, but should not speculate concerning their condition. Material facts concerning the employee’s fitness for a certain position are better than saying something like, “Well, so-and-so might go postal.”
- BFOQ defenses – Bona fide occupational qualification defenses allow an employer to discriminate against an entire class of disabled individuals who don’t have a necessary qualification to perform a specific duty. Employers are required to prove that a class of disabled individuals would be unqualified to perform specific duties. As an example, a wheelchair-bound individual would not make a good candidate for a job that requires the work to climb a pole.
Preventing Employee Lawsuits Based on Disability Discrimination
It maybe sounds like employers should use common sense when making decisions concerning prospective applicants, but thousands of disability discrimination lawsuits are filed each year by employees who only needed to be allowed to do some of their work from home or any other reasonable accommodation. The fact is, each and every discrimination lawsuit is evaluated on a case-by-case basis and most of the standards used in these cases are highly subjective. A skilled Los Angeles employment lawyer can help your company prevent avoidable lawsuits before they are filed.