October 2, 2018

California has its own laws on Disability Discrimination:  Many employers are unaware that California has statewide disability laws which are additional to, and more stringent than, the federal Americans with Disabilities Act of 1990 (ADA).  The California legislature specifically intends California’s disability laws to be independent of the ADA.  [Gov. Code § 12926.1.] Although the federal ADA provides a floor of protection, California’s law has always, even before the ADA’s enactment, afforded additional and often greater protections to disabled persons.

In California, the basic legal prohibition against disability discrimination is set forth in Government Code section 12940, as follows:

It is an unlawful employment practice, unless based upon a bona fide occupational qualification . . . (a) For an employer, because of the . . . physical disability [or] mental disability . . . of any person, to refuse to hire or employ the person or . . . bar or to discharge the person from employment or . . . discriminate against the person in compensation or in terms, conditions, or privileges of employment.

Definition of Disability:  The definitions of “physical disability” and “mental disability” under California law require a “limitation” upon a “major life activity,” but not the “substantial limitation” required by the ADA.  [Gov. Code § 12926.1.]  A disorder or condition is deemed a limitation of a major life activity if it makes the achievement of the major life activity “difficult.”  It need not make it impossible – just difficult.  “Major life activity” is broadly construed, and includes physical, mental, and social activities, and working.  [Gov. Code § 12926(k).]  What this means is, if a physical or mental condition makes working, social activities, or physical or mental activities difficult, it is a disability under California law.

Physical Disabilities
A “physical disability” includes but is not limited to:

1. Having any physiological disease, disorder, condition, cosmetic disfigurement, or anatomical loss that does both of the following:
   1. Affects one or more of the following body systems: neurological, immunological, musculoskeletal, special sense organs, respiratory, . . . cardiovascular, reproductive, digestive, genitourinary, hemic and lymphatic, skin and endocrine; and
   2. Limits an individual’s ability to participate in a major life activity.  A major life activity includes physical, mental, social activities, and working;
2. Any health impairment not described above that requires special education or related services;
3. Having a record or history of a disease, disorder, condition, cosmetic disfigurement, anatomical loss, or health impairment described above, which is known to the employer;
4. Being regarded or treated by the employer as having, or having had, any physical condition that makes achievement of a major life activity difficult; or
5. Being regarded or treated by the employer 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 described above.

A medical condition is either (1) a health impairment related to or associated with cancer or a record or history of cancer; (2) a genetic or inherited characteristic known to be a cause of a disease or disorder in a person or that person’s offspring; or (3) a genetic or inherited characteristic associated with an increased risk of developing a disease or disorder but not with any symptoms of a disease or disorder.  [Cal. Gov. Code § 12926(i).]

Physical disabilities do not include sexual behavior disorders, compulsive gambling, kleptomania, pyromania, or psychoactive substance abuse disorders resulting from the current unlawful use of controlled substances or other drugs.  [Cal. Gov. Code § 12926(m)(6).]

Mental Disabilities
Pursuant to California’s Government Code section 12926(j), a “mental disability” includes “any mental or psychological disorder or condition such as intellectual disability, organic brain syndrome, emotional or mental illness, or specific learning disabilities” that “limits a major life activity.”

Other examples of mental disabilities, from case law, include but are not limited to:

1. post-traumatic stress disorder (depending on the severity) [Jensen v. Wells Fargo Bank (2000) 85 Cal.App.4th 245, 256];
2. severe depression and personality disorder [Auburn Woods Homeowners Ass’n v. FEHC (2004) 121 Cal.App.4th 1578, 1592]; and
3. obsessive-compulsive disorder [Humphrey v. Memorial Hosps. Ass’n (2001) 239 F3d. 1128, 1134].

Mental disabilities do not include sexual behavior disorders, compulsive gambling, kleptomania, pyromania, or psychoactive substance abuse disorders resulting from the current unlawful use of controlled substances or other drugs.  [Cal. Gov. Code § 12926(j)(5).]

Chronic or Episodic Physical and Mental Disabilities
California’s Government Code section 12926.1(c) lists examples of chronic or episodic conditions, including but not limited to:

1. HIV/AIDS;
2. hepatitis;
3. epilepsy;
4. seizure disorder;
5. clinical depression;
6. bipolar disorder;
7. diabetes;
8. multiple sclerosis; and
9. heart disease.

Mitigating Measures Are Irrelevant:  Under California law, whether a condition limits a major life activity shall be determined without respect to any mitigating measures [such as medications, assistive devices like hearing aids or eyeglasses, prosthetics, or reasonable accommodations] unless the mitigating measure itself limits a major life activity.  [Gov. Code §§ 12926(l)(B)(I) and 12926.1(c).]

Disabilities Can Be Actual or Perceived:  The California legislature has also made it clear that the definitions of physical disability and mental disability are intended to protect employees against discrimination due not only to an actual disability — but also due to a perceived physical or mental disability.  [Gov. Code § 12926.1(c).]  In other words, if you discriminate against someone because you perceive that they have a mental disability, which they actually do not have, that is still unlawful discrimination.

Call an Attorney!  Whether you are an employer who needs to consult a knowledgeable attorney to explain the ramifications and requirements set forth by both the federal Americans with Disabilities Act of 1990 and the California state laws on disability, or an employee who has experienced disability discrimination or harassment, call an attorney.

Need more information?
ESKRIDGE LAW may be contacted by phone (310/303-3951), by fax (310/303-3952) or by email (geskridge@eskridgelaw.net).  Please visit our website at eskridge.hv-dev.com.

This article is based on the law as of the date posted at the top of the article.  This article does not constitute the provision of legal advice, and does not by itself create an attorney-client relationship with Eskridge Law.