Disability discrimination occurs when an employer or other entity covered by the Americans with Disabilities Act (ADA), as amended, or the Rehabilitation Act, as amended, treats a qualified individual with a disability who is an employee or applicant unfavorably because she has a disability.
The California Fair Employment and Housing Act (FEHA) also prohibits unlawful disability discrimination.
Disability discrimination also occurs when a covered employer or other entity treats an applicant or employee less favorably because she has a history of a disability (such as cancer that is controlled or in remission) or because she is believed to have a physical or mental impairment that is not transitory (lasting or expected to last six months or less) and minor (even if she does not have such an impairment).
The law requires an employer to provide reasonable accommodation to an employee or job applicant with a disability, unless doing so would cause significant difficulty or expense for the employer (“undue hardship”).
The law also protects people from discrimination based on their relationship with a person with a disability (even if they do not themselves have a disability). For example, it is illegal to discriminate against an employee because her husband has a disability.
Note: Federal employees and applicants are covered by the Rehabilitation Act of 1973, instead of the Americans with Disabilities Act. The protections are mostly the same.
An employer must have a certain number of employees to be covered by the ADA. This number varies depending on the type of employer (for example, whether the employer is a private company, a state or local government agency, a federal agency, an employment agency, or a labor union) and the kind of discrimination alleged (for example, discrimination based on a person’s race, color, religion, sex (including pregnancy), national origin, age (40 or older), disability or genetic information).
If a complaint against a private employer or public agency involves disability or genetic information the business is covered by the ADA if it has 15 or more employees who worked for the employer for at least twenty calendar weeks (in this year or last).
An employment agency, such as a temporary staffing agency or a recruitment company, is covered by the ADA if the agency regularly refers employees to employers. This is true even if the employment agency doesn’t receive payment for this service, and the agency is covered no matter how many employees it has.
A labor union or joint apprenticeship committee that operates a hiring hall or has at least 15 members is covered by the ADA.
Usually, a worker can be counted as an “employee” if s/he has worked for the employer for at least twenty calendar weeks (in this year or last). That means some part-time workers can be covered as employees to show the employer is covered by the laws we enforce. People who are not employed by the employer, such as independent contractors, are not covered.
In some cases, if the employer has more than one work site, employees at each of the work sites can be counted together. For example, if an employer operates four different restaurants, it may be possible to count employees at all of the restaurants together.
Disability Discrimination & Work Situations
The law forbids discrimination when it comes to any aspect of employment, including hiring, firing, pay, job assignments, promotions, layoff, training, fringe benefits, and any other term or condition of employment.
Disability Discrimination & Harassment
It is illegal to harass an applicant or employee because he has a disability, had a disability in the past, or is believed to have a physical or mental impairment that is not transitory (lasting or expected to last six months or less) and minor (even if he does not have such an impairment).
Harassment can include, for example, offensive remarks about a person’s disability. Although the law doesn’t prohibit simple teasing, offhand comments, or isolated incidents that aren’t very serious, harassment is illegal when it is so frequent or severe that it creates a hostile or offensive work environment or when it results in an adverse employment decision (such as the victim being fired or demoted).
The harasser can be the victim’s supervisor, a supervisor in another area, a co-worker, or someone who is not an employee of the employer, such as a client or customer.
Disability Discrimination & Reasonable Accommodation
The law requires an employer to provide reasonable accommodation to an employee or job applicant with a disability, unless doing so would cause significant difficulty or expense for the employer.
A reasonable accommodation is any change in the work environment (or in the way things are usually done) to help a person with a disability apply for a job, perform the duties of a job, or enjoy the benefits and privileges of employment.
Reasonable accommodation might include, for example, making the workplace accessible for wheelchair users or providing a reader or interpreter for someone who is blind or hearing impaired.
While the federal anti-discrimination laws don’t require an employer to accommodate an employee who must care for a disabled family member, the Family and Medical Leave Act (FMLA) may require an employer to take such steps. The U.S. Department of Labor enforces the FMLA. Employees may also privately enforce the ADA and the FMLA in court, if necessary, by hiring an employment and labor attorney or lawyer.
California employee protection laws, such as the California Family Rights Act (CFRA) and the FEHA have similar and, in some case, more expansive protections for workers. The California Department of Fair Employment and Housing enforces the FEHA. Employees may also privately enforce the CFRA and the FEHA by engaging the services of a labor and employment lawyer or attorney.
Disability Discrimination & Reasonable Accommodation & Undue Hardship
An employer doesn’t have to provide an accommodation if doing so would cause undue hardship to the employer.
Undue hardship means that the accommodation would be too difficult or too expensive to provide, in light of the employer’s size, financial resources, and the needs of the business. An employer may not refuse to provide an accommodation just because it involves some cost. An employer does not have to provide the exact accommodation the employee or job applicant wants. If more than one accommodation works, the employer may choose which one to provide.
Definition Of Disability
Not everyone with a medical condition is protected by the law. In order to be protected, a person must be qualified for the job and have a disability as defined by the law.
A person can show that he or she has a disability in one of three ways:
- A person may be disabled if he or she has a physical or mental condition that substantially limits a major life activity (such as walking, talking, seeing, hearing, or learning; and, under California employment law, working).
- A person may be disabled if he or she has a history of a disability (such as cancer that is in remission).
- A person may be disabled if he is believed to have a physical or mental impairment that is not transitory (lasting or expected to last six months or less) and minor (even if he does not have such an impairment).
Disability & Medical Exams During Employment Application & Interview Stage
The law places strict limits on employers when it comes to asking job applicants to answer medical questions, take a medical exam, or identify a disability.
For example, an employer may not ask a job applicant to answer medical questions or take a medical exam before extending a job offer. An employer also may not ask job applicants if they have a disability (or about the nature of an obvious disability). An employer may ask job applicants whether they can perform the job and how they would perform the job, with or without a reasonable accommodation.
Disability & Medical Exams After A Job Offer For Employment
After a job is offered to an applicant, the law allows an employer to condition the job offer on the applicant answering certain medical questions or successfully passing a medical exam, but only if all new employees in the same type of job have to answer the questions or take the exam.
Disability & Medical Exams For Persons Who Have Started Working As Employees
Once a person is hired and has started work, an employer generally can only ask medical questions or require a medical exam if the employer needs medical documentation to support an employee’s request for an accommodation or if the employer believes that an employee is not able to perform a job successfully or safely because of a medical condition.
The law also requires that employers keep all medical records and information confidential and in separate medical files.
Getting Legal Help from a Sacramento Disability Discrimination or Retaliation Attorney
If you are the victim of illegal disability discrimination or retaliation, contact the employment and labor lawyers at Rose Law for a free case evaluation. Complete our employment law questionnaire and our attorneys will evaluate your case. Call 1-800-456-3767 today to speak to our legal team.