August 6, 2018
In October of 2017, a jury in South Pasadena awarded $4.8 million to Timothy Patrick Green, a disabled police officer with 18 years on the force, because of the harsh and discriminatory treatment he received due to his difficulty in writing reports, a difficulty caused by attention deficit/hyperactive disorder. He had asked his employer for a reasonable accommodation to help him overcome this difficulty, but instead he was fired on a false charge of dishonesty. His successful lawsuit against his employer was based on anti-discrimination provisions in California’s Fair Employment and Housing Act (FEHA).
What is Disability Discrimination under California Law?
California law protects disabled employees and job applicants from harassment and discrimination. California Government Code Section 12940, part of FEHA, states:
“It is an unlawful employment practice, unless based upon a bona fide occupational qualification … (a) For an employer, because of the … physical disability, mental disability, [or] medical condition … of any person, to … refuse to hire or employ the person or to refuse to select the person for a training program leading to employment, or to bar or to discharge the person from employment or from a training program leading to employment, or to discriminate against the person in compensation or in terms, conditions, or privileges of employment.”
Physical Disability includes any physiological disease, disorder, condition, cosmetic disfigurement or anatomical loss that affects a body system and limits a major life activity. [Gov. Code § 12926(m).] Major life activities include physical, mental, and social activities, and working.
Mental Disability is either:
(A) having a mental or psychological disorder or condition that limits a major life activity or that requires special education or related services; or
(B) having a record or history of a mental or psychological disorder or condition described in (A) above, which is known to the employer; or
(C) being regarded or treated by the employer as having, or having had, either (1) a mental condition that makes achieving a major life activity difficult, or (2) a mental or psychological disorder or condition that may become a mental disability described in (A) above.
[Gov. Code § 12926 (j).]Physical and mental disabilities are not limited to acute conditions such as a broken leg, but also specifically include chronic (i.e. long-developing) or episodic conditions such as HIV/AIDS, hepatitis, epilepsy, diabetes, clinical depression, bipolar disorder, multiple sclerosis, and heart disease. [Gov. Code § 12926.1(c).]
Medical Condition is defined as either (1) a health impairment related to cancer, or (2) a genetic characteristic known to cause, or be associated with, a disease or disorder. [Gov. Code § 12926(i).]
Protection for disabled workers in California is broad. California law expressly states that the term “major life activity” (as used above) is to be broadly construed. [Gov. Code §§ 12926(j)(1)(C) and 12926(m)(1)(B)(iii).] “Disability” is also broadly construed [Cal. Code Regs., tit. 2, § 11065], as is “physical disability,” “mental disability,” and “medical condition” [Gov. Code § 12926.1(b)].
Also, under California law, the definitions of “mental disability” and “physical disability” require merely that the disability “limit” a major life activity, and this is defined as making performance of the major life activity “difficult.” [Gov. Code §§ 12926(j)(1)(B) and 12926(m)(1)(B)(ii).] The ADA, by contrast, requires that a disability “substantially limit” a major life activity, which is a more difficult standard to satisfy. [See distinction between state and federal law on this point in Gov. Code § 12926.1(d).]
The protection afforded by the federal Americans with Disabilities Act of 1990 (ADA) was initially interpreted narrowly in a series of court rulings. In a 2008 congressional reaction to those rulings, the ADA was amended to expand the scope of its terms “disability” and “substantially limits.” [ADA Amendments Act of 2008, codified as 42 U.S.C. § 12101 et seq.] However, it would still exclude many cases that come under the protection of FEHA.
Under California law, “whether a condition limits a major life activity shall be determined without respect to any mitigating measures, unless the mitigating measure itself limits a major life activity.” [Gov. Code § 12926.1(c).] The ADA, by contrast, allows some disability-mitigating measures, including eyeglasses and contact lenses, to be considered in determining whether an employee’s condition limits a major life activity, and hence whether the employee is disabled for purposes of the disability discrimination law. As a result, more mental and physical impairments will qualify as disabilities for purposes of disability discrimination law under California law than under federal law. For example, under California law an employee who suffers discrimination due to wearing thick-lensed eyeglasses, but who has normal eyesight while wearing those eyeglasses, might have a discrimination claim under California law but not under the ADA.
California law also protects employees from discrimination for being associated with someone who is disabled or has a medical condition, or is so perceived. [Gov. Code § 12926(o).] For example, a California employer cannot discriminate against an employee on the grounds that the employee has a disabled spouse or domestic partner.
It is unlawful in California for an employer to fail to provide a disabled applicant or employee with a reasonable accommodation, unless doing so would cause the employer undue hardship. [Gov. Code § 12940(m).] An applicant or employee may only be denied work or discharged because of a disability if he/she is unable to perform one or more essential duties of the job, even with reasonable accommodations. [Gov. Code § 12940(a)(1) – (2).]
Steps to Prevent Disability Discrimination:
1. Perform an audit of policies and job descriptions. Identify the essential duties of each job and be sure to include each such duty in the job description. Mental and physical requirements of a job are essential duties.
2. Conduct training. It is imperative to train members of management to recognize requests for accommodation and to seek assistance on this from human resources and/or counsel.
3. Consult an experienced employment 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.