August 31, 2018

It is against the law to harass or discriminate against an employee on the basis of a physical or mental disability.  Numerous state and federal laws address disability discrimination; California’s Fair Employment and Housing Act (“FEHA”) prohibits employment discrimination on the basis of “physical disability, mental disability, and medical condition.”  [Cal. Gov. Code § 12940(a).]

Employers subject to FEHA
An employer who regularly employs five (5) or more persons, is subject to the FEHA.  [Cal. Gov. Code § 12926(d).] An employee of such an employer is individually liable for harassment prohibited by FEHA that is perpetrated by the employee.  [Cal. Gov. Code § 12940(j)(3); Roby v. McKesson Corp. (2009) 47 Cal.4th 686, 709.]

Employees protected by FEHA
The FEHA protects not just employees, but also “an applicant, an unpaid intern or volunteer, or a person providing services pursuant to a contract.”  [Cal. Gov. Code § 12940(j)(1).] This includes independent contractors.  [Hirst v. City of Oceanside (2015) 236 Cal.App.4th 774, 787 – 789.]

To bring a cause of action under the FEHA, the employee must show that he or she can perform the essential duties of the job with reasonable accommodation.  [Green v. State of Calif. (2007) 42 Cal.4th 254, 264.] Note that the FEHA does not prohibit refusing to hire or discharging an employee with a physical or mental disability who is “unable to perform the employee’s essential duties even with reasonable accommodations, or cannot perform those duties in a manner that would not endanger the employee’s health or safety or the health or safety of others even with reasonable accommodations.”  [Cal. Gov. Code § 12940(a)(1).]

Disabilities covered under the FEHA
Physical Disabilities
Under California’s Government Code section 12926(m), 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:
   (a) 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
   (b) 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.
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 under FEHA 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 which come under FEHA, 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.

FEHA Provides Broader Protection than the ADA
The California legislature has made it very clear that it intends California law to provide broader protections than the Americans with Disabilities Act of 1990 (ADA):

• Although the [ADA] provides a floor of protection, this state’s law has always, even prior to passage of the [ADA], afforded additional protections.
• The law of this state contains broad definitions of physical disability, mental disability, and medical condition.  It is the intent of the Legislature that the definitions of physical disability and mental disability be construed so that applicants and employees are protected from discrimination due to an actual or perceived physical or mental impairment that is disabling, potentially disabling, or perceived as disabling or potentially disabling.

[Cal. Gov. Code § 12926.1(b).] “Limits” are determined without regard to mitigating measures, unless the mitigating measure itself limits a major life activity.  A disease, disorder, condition, cosmetic disfigurement, or anatomical loss limits a major life activity if it makes the achievement of the major life activity difficult.  “Major life activity” is to be broadly construed to include physical, mental, and social activities and working.  [Cal. Gov. Code § 12926(m)(1).]

Reasonable Accommodation Required by Law
It is the employer’s duty to gather sufficient information from qualified experts to determine the appropriate accommodation for a disability.  [Prilliman v. United Air Lines, Inc. (1997) 53 Cal.App.4th 935, 948 – 949.] In California Government Code section 12962.1(e), the Legislature affirms the importance of the interactive process between the applicant or employee and the employer in determining a reasonable accommodation, as this requirement is articulated by the Equal Employment Opportunity Commission in its interpretive guidance of the federal Americans with Disabilities Act of 1990.

Types of reasonable accommodations may include:

1. making facilities accessible to and usable by disabled individuals;
2. job restructuring;
3. part-time or modified work schedules;
4. reassigning to a vacant position;
5. acquiring or modifying equipment or devices;
6. adjusting or modifying examinations, training materials, or policies;
7. providing qualified readers or interpreters; and
8. other similar accommodations for individuals with disabilities.

[Cal. Gov. Code § 12926(p); 2 Cal.C.Regs. § 11068(a).] The FEHA provides detailed procedures and remedies to deter and redress unlawful employment practices.  Be aware that you have only one year from the time of the discriminatory or harassing action to file a complaint.

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.