As a qualified employee or job applicant, regardless of disability, you deserve to be treated fairly by an employer. It is unlawful to be treated unfavorably due to any disability. Unfortunately, disability discrimination in California happens. It could be a supervisor or a co-worker creating a hostile work environment. It does not matter who is causing it; what matters is that you have been discriminated against in the workplace based on your disability. When this happens, you are entitled to take action. In some cases, you may be owed compensation.
At Lowry Law Firm, our discrimination disability lawyer based in Los Angeles County understands California's Fair Employment and Housing Act and the federal Americans with Disabilities Act (ADA) and will uphold your rights. Contact us at (818) 797-4321 to schedule a Free Consultation and to learn more about your legal options.
What Constitutes Disability Discrimination in California?
Disability discrimination occurs when a person who suffers from a disability is treated less favorably as an employee or a job applicant due to that disability. Disability discrimination also occurs when a person is treated differently due to their association with a person with a disability.
Rights for Employees with Disabilities
The California Fair Employment and Housing Act establishes certain rights for employees and job applicants that have a disability. These rights include:
- Freedom from harassment. A disabled person cannot be harassed regarding their disability in the workplace by supervisors, managers, or co-workers.
- Reasonable accommodations. A person who suffers from a disability has the right to request reasonable accommodations to allow them to apply for a job, perform their job duties, or otherwise have the same benefits as other employees.
- Privacy. An employer is very limited in what they can ask an employee about in regard to their health.
- Confidentiality. With limited exceptions, any information an employee does share with an employer in regard to their health must be kept confidential.
- Freedom from retaliation. A person who does complain about disability discrimination, or is associated with a person who complains about disability discrimination, cannot be retaliated against.
Rights have further been established by the federal Americans with Disability Act (ADA), which became law in 1990. In 2008, the Americans with Disabilities Act Amendments Act (ADAAA) became law. The ADAAA clarifies the scope and definition of disability under the ADA. These acts are designed to provide the same opportunities and rights that a typical person has in all areas of life, including employment.
Examples of Disability Discrimination in California
Disability discrimination can take various forms. Some common examples are described below.
Employees with disabilities should be given the same chance to succeed as employees who don't have disabilities. For example, a disabled employee should have the same access to areas around the office as other, non-disabled employees. An employee in a wheelchair, for example, should be able to maneuver around the same as everyone else and access all areas of the office available to other employees.
As another example, an employer cannot pass you over for a promotion if you have a disability or if you are close to someone with a disability. For example, an employee has a child with a disability and finds out that the reason they were not promoted is that their manager thought it would be too much responsibility for someone with a disabled family member.
Failure to Engage in a Good-Faith, Interactive Process
The California Fair Employment and Housing Act requires employers and other covered entities to engage in a timely, good-faith, interactive process with employees and job applicants to determine effective reasonable accommodations, so long as the employee or applicant has requested an accommodation.
Failure to Provide Reasonable Accommodations
If an employee requires an accommodation that would be no hardship on the employer to effectively complete their job, the employer should comply with that accommodation. For example, if an employee is partially deaf and cannot hear well in a noisy environment and requests a workspace in a quieter area, the employer should provide them with a new workspace when possible.
When an employer fails to provide reasonable accommodation, a disability discrimination claim may exist.
Retaliation for Requesting a Reasonable Accommodation
The California Fair Employment and Housing Act prohibits employers and other covered entities from retaliating against a person for requesting accommodation for a known disability.
A disabled employee's disability should never be the subject of office jokes or teasing. For example, an employee who is blind should never be made fun of due to their loss of vision.
Jokes, however, do not have to be specific to the employee's disability but relevant to disabilities in general. If there's a pattern of jokes or teasing in the office, a hostile work environment is created. As such, the employer may be liable for disability discrimination.
Establishing a Disability
A disability can be established in one of three ways:
- You have a physical or mental condition, and it substantially limits a major life activity. "Major life activities" is broadly construed under the California Fair Employment and Housing Act and includes physical, mental, and social activities, such as walking, seeing, hearing, and working.
- You have a history or record of a disability (mental or physical impairment) that substantially limited a major life activity, even though you do not have the disability now. An example of this type of disability is cancer––you had cancer but are now in remission.
- You are regarded as having a physical impairment, which could mean any of the following: (1) you have an impairment that does not substantially limit a major life activity; (2) you have an impairment that substantially limits a major life activity because of the way others perceive you; or (3) you have no impairment but are still treated by an entity as having one.
Examples of Qualifying Disabilities
- Bipolar disorder
- Cerebral palsy
- Depression (severe)
- HIV infection
- Loss of limb(s)
- Multiple sclerosis
- Muscular dystrophy
- Post-traumatic stress disorder (PTSD)
Examples of Non-Qualifying Disabilities
Simply having a medical condition or mental health issue will not always constitute a disability for the purposes of disability discrimination claims or complaints. Examples of conditions that do not constitute an impairment in terms of the ADA include:
- Compulsive gambling
- Psychoactive substance use disorders (as a consequence of illegal substance abuse)
- Sexual behavior disorders
What Should Employers in California Do to Prevent Disability Discrimination?
While there may be differences in how disability discrimination is treated in the workplace in different states, there are steps that all employers should take to prevent it from happening.
All companies should provide training for employees, including those in leadership. Training should include federal, state, and local laws on what is considered disability discrimination. It should be administered to all new hires.
Training, however, should not be a one-time event. The training should be reviewed on a regular basis so that it complies with any changes in the law or with all new rules and regulations.
Companies should create policies that address disability discrimination and clarify what is not allowed. There should also be a procedure in place to file a complaint. All complaints should be addressed and when appropriate, discipline should be administered.
What Should Employees in California Do if Discriminated Based on Disability?
Employees who have been discriminated against often feel embarrassed and angry, with good reason. But they are not without recourse. The following actions can help victims protect their rights.
- Keep a record. Employees who have been harassed or discriminated against should keep detailed records of the misconduct, including where and when it happened; a description of what was done or said; the name (or names) of the abuser(s); and the name (or names) of witnesses. Detailed notes are important. Potential evidence, such as emails, text messages, social media posts, photographs, and other evidence of the misconduct, should be preserved. If litigation occurs in the future, it is helpful to have the notes to jog memories and evidence to support the claims made.
- Report the discrimination internally. Employees should immediately follow the guidelines in their employee handbook for reporting harassment and discrimination. California employers have a legal obligation to take prompt, appropriate corrective action to stop harassment and discrimination, even while they investigate the allegations, and a further obligation to conduct an investigation. Note, however, that some employers--surprisingly--may violate the law by ignoring complaints of harassment and discrimination and, further, by retaliating against an employee who has reported harassment or discrimination, even if the employer's handbook states that the employer does not to tolerate harassment and discrimination in the workplace; encourages reporting; and states that all complaints will be taken seriously. If an employee doesn't report harassment or discrimination, however, and it continues, then the employer will likely blame the employee for not giving the employer a chance to stop the harassment or discrimination. In sum, reporting harassment and discrimination carries a risk, but so does not reporting it. Employees may wish to speak with an attorney even before reporting harassment or discrimination for advice on what to include in a complaint and what to expect from the employer in response.
- Consider telling someone the employee trusts inside and outside the workplace. If an employee who is the victim of harassment or discrimination ends up having to file a lawsuit, the employer's attorneys may seek to take a deposition from the employee's spouse, domestic partner, or significant other; the employee's roommates; the employee's best friend; the employee's co-workers; the employee's doctor; the employee's therapist; the employee's spiritual advisor; and other people close to the employee. The defense attorneys do this looking for complaints made as things happened. If they find nothing, they will likely argue that the harassment or discrimination didn't happen.
- Be a model employee. Some employers may retaliate immediately against an employee who has reported harassment and discrimination. If they do, the employee's case will be even stronger. Other employers may watch the complaining employee closely to see if they violate any workplace rules or guidelines in order to find a "legitimate" reason to fire or discipline the complaining employee. Once an employee decides to report harassment or discrimination internally, the employee needs to be a model employee.
- Speak to an attorney. If reporting the harassment or discrimination does not resolve the issue, the employee should speak with an attorney who handles harassment and discrimination claims.
In harassment and discrimination cases, time is of the essence. There are limits on how long an employee has to file a complaint for harassment. Determining when the clock starts ticking can be tricky. Further, you may have to file a claim with a government agency, such as the California Civil Rights Department, before you can file a lawsuit. You should consult a lawyer who handles harassment and discrimination claims to ensure all the necessary steps have been taken to preserve your legal rights.
Contact an Employment Law Attorney in Los Angeles County Today
Kent Lowry is an employment law lawyer based in Los Angeles County who understands how you must feel if you have suffered disability discrimination in California. He will take responsible, comprehensive legal action against your employer to make sure your rights are protected. Contact Kent by filling out the online form or calling him at (818) 797-4321 to schedule a Free Consultation and to learn more about the recourse you can take.