Disabled employees and applicants often face intentional discrimination resulting from bias against their disabilities. Although Californians are largely familiar with the federal Americans with Disabilities Act (“ADA”), California law provides California employees greater workplace protections against disability discrimination and harassment.  The Fair Employment & Housing Act (“FEHA”) prohibits discrimination based on physical and mental disability by requiring employers to reasonably accommodate an applicant or employee’s known physical or mental disabilities.  2 Cal. Code Reg. § 11068(a). Ultimately, California law seeks to reduce barriers to employment disabled employees and applicants face aggressively.

Disability Defined

California courts traditionally liberal interpretation of FEHA ensured many conditions constitute a disability.  Assuredly, many Californians not considered disabled under the federal ADA are disabled under FEHA.

FEHA defines disability to include any condition that, when left untreated, limits the performance of one or more major life activities. Government Code § 12926. Under FEHA, working is a major life activity.  Government Code § 12926.1(c).  Disabilities include, but are not limited to, chronic or episodic conditions, deafness, blindness, learning disabilities, autism, schizophrenia, clinical depression, bipolar disorder, PTSD, OCD, missing limbs, mobility impairments, cerebral palsy, and heart disease.

Reasonable Accommodation Defined

Under FEHA, mployers have a duty to make reasonable accommodation for disabled employees or applicants with known disabilities.  Prilliman v. United Air Lines, Inc., 53 Cal. App. 4th 935 (1997).  Generally, reasonable accommodation is any workplace modification or adjustment that enables the disabled employee or applicant to perform essential job functions.  Swanson v. Morongo Unif. School Dist., 232 Cal. App. 4th 954, 968-969 (2014).  FEHA expressly states that a reasonable accommodation may include: (1) making the existing workplace accessible to and usable by disabled employees; and, (2) job restricting, part-time or modified work schedules, reassignment, acquisition or modification of equipment or devices, modification of examination or training materials, and other similar accommodations.  Government Code § 12926(p).

The employer need not grant every reasonable accommodation. Where the employer demonstrates, after engaging in the interactive process, that the requested accommodation imposes an undue hardship, it is excused from providing that accommodation. Prilliman v. United Air Lines, Inc., 53 Cal. App. 4th 935 (1997).

Where Possible, Employers Must Reassign Disabled Employees

Where an employer seeks reassignment, the employer is obligated to reassign the employee to another existing and vacant position for which the employee is qualified.  The employer need not create a new position to accommodate the disabled employee.  Swanson v. Morongo Unif. School District, 232 Cal. App. 4th 954, 970 (2014).  Where a vacant position exists, the disabled employee seeking reassignment is entitled to preferential consideration.  Id.  

Often, disabled employees seek reassignment where they are unable to perform an essential job function of their current position.  Atkins v. City of Los Angeles, 8 Cal. App. 5th 696 (2017).  This saves the employee’s employment as the employer is obligated to reassign the disabled employee, to the extent vacant positions exist.

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Employer’s Failure to Accommodate

Where an employee is disabled, the employer and employee must engage in the interactive process and determine whether the employer can provide the disabled employee accommodation enabling the disabled employee to perform essential job functions.  FEHA requires the employer to do everything in its power to find a viable reasonable accommodation.  Notably, the employer need not provide the specific accommodation requested by the employer but must provide a reasonable accommodation.

To prevail on a disability discrimination claim, the disabled employee or applicant must prove: (1) They have a disability under FEHA; (2) They are qualified to perform the position or desired position’s essential functions; and, (3) The employer failed to reasonably accommodate their disability. Scotch v. Art Institute of California, 173 Cal. App. 4th 986, 1010 (2009); Nadaf-Rahrov v. The Neiman Marcus Group, Inc., 166 Cal. App. 4th 952, 977-980 (2008).  

Where the employer fails to engage in a negotiation, the disabled employee also has a cause of action for the employer’s failure to participate in the interactive process.

The fact that an employer may have taken some initial steps to work with or negotiate with the disabled employee to identify reasonable accommodations does not absolve the employer of liability for later failing to engage in the interactive process or for failing to accommodate.  InSpitzer v. Good Guys, Inc., 80 Cal. App. 4th 1376 (2000), the employer knew an initial accommodation was ineffective and, despite initially engaging in the interactive process, could be liable for failing to provide additional accommodations.

Ultimately, liability hinges on the objective circumstances and facts related to the communications failure and dispute. 

Reasonable Accommodation Examples

Reasonable accommodation examples include:

  • Taking leave from work can be a reasonable accommodation under FEHA.  Moore v. Regents of University of California, 248 Cal. App. 4th 216 (2016).
  • Reassignment to a vacant position for which the disabled employee is qualified.  Government Code § 12926.
  • Providing less strenuous or hazardous positions for temporary conditions related to pregnancy, childbirth, or related medical conditions.  Government Code § 12945.

Exceptions

FEHA requires California employers to accommodate an employee or applicant’s known physical or mental disabilities, except where one of the following exceptions applies:

  • The employer need not provide an accommodation that results in undue hardship to business operations.  Government Code § 12940(m); 2 Cal. Code Reg. § 11068; CACI 2541.
  • The employer need not provide an accommodation allowing the use of illegal drugs, including medical marijuana.  Ross v. Raging Wire Telecommunications, Inc., 42 Cal. 4th 920 (2008).

Damages

Disabled employees and applicants who experience discrimination and harassment can recover money damages.  FEHA provides for a $25,000 statutory penalty to aggrieved employees and applicants.  Further, disabled employees and applicants can recover back pay, front pay or reinstatement, emotional distress damages, punitive damages, and their attorney fees in a disability discrimination action against their former, current, or potential employer.

If you are the victim of FEHA disability discrimination, contact Astanehe Law for your free consultation.  Astanehe Law has experience in protecting California employees from employment discrimination and will help you obtain justice.  Call us at (415) 226-7170 or email us at contact@astanehelaw.com.