Disability Discrimination and Retaliation

In California, under the Fair Employment and Housing Act, employers with five or more employees can’t fire or mistreat workers because of a disability, unless the worker can’t perform essential job duties even with accommodations.

What is a Disability Discrimination or Retaliation?

Under the Fair Employment and Housing Act, it is unlawful for employers to refuse to hire, terminate or discriminate against an employee in the terms, conditions, or privileges of employment because of a physical or mental disability. Such disabilities include, but are not limited to, physiological diseases, disorders, conditions, cosmetic disfigurements, or anatomical losses that both (1) affect either neurological, immunological, musculoskeletal, special sense organs, respiratory, speech organs, cardiovascular, reproductive, digestive, genitourinary, hemic and lymphatic, skin, and endocrine systems; and (2) limits a major life activity. Disabilities also include mental or psychological disorders or conditions (e.g., intellectual disability, organic brain syndrome, emotional or mental illness, specific learning disabilities) that limits a major life activity. For example, a disability could be a broken arm, pregnancy-related disabilities, severe anxiety and/or depression not due to standard oversight at work, chronic gastrointestinal disorders, A.D.H.D., etc. Discrimination or Retaliation can come in many forms, but typically include termination from employment, reduction in pay or hours, demotion of position, or forced leave when a reasonable and less restrictive accommodation is available without “undue hardship.”

What is the Good Faith Interactive Process?

Employers have an affirmative legal duty to initiate the good faith interactive process in a timely manner to discuss possible reasonable accommodations with the disabled employee. This duty arises when an employee notifies their employer of a disability or need for an accommodation. The duty can also arise, even if an employee does not notify their employer of a disability or request an accommodation, when the disability is obvious such that the employer would have perceived the disability. During the interactive process, it is the employee’s responsibility to provide reasonable medical documentation, describe their need for reasonable accommodations, and continue to engage in the interactive process when contacted by the employer. If a reasonable accommodation exists and the employer fails to engage in the interactive process, or if the employer is responsible for a breakdown in the interactive process, the employer may be liable.

What is the Duty to Reasonably Accommodate?

Employers have an affirmative and legal duty to adjust the job or workplace in order to reasonably accommodate a disabled employee. Reasonable accommodations often include modified work schedules, job restructuring, transfers to more accessible work sites, reassignment to a vacant position, or even unpaid leave for treatment and recovery. An employer’s legal duty to reasonably accommodate is limited only by “undue hardship.” When assessing an alleged “undue hardship” defense, it is important to investigate and analyze the size, budget, and profit of the employer, the employer’s operations, the nature and costs of possible accommodations, available alternative means of accommodations, and, if the accommodation is leave from work, the length of leave taken and needed from work. If a reasonable accommodation exists without an “undue hardship” and an employer fails to provide such accommodations to a disabled employee, or outright terminates a disabled employee, the employer may be liable.

Legal Liability.

If you have been discriminated or retaliated against based on a disability or perceived disability, you may be entitled to compensation for lost wages, lost career opportunities, emotional distress, and punitive damages if your employer acted with malice, oppression or fraud. Your rights are still protected, and you may still be entitled to damages, even if you employer alleges that you were terminated for performance issues or selected in a layoff or reduction in force.

The content on this website is not legal advice, does not establish an attorney-client relationship, and does not guarantee any particular outcome.

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