Disability Discrimination Lawyer CA

Brad Nakase, Attorney

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Disabilities can affect your everyday life. They are especially hard if they influence one’s ability to work or his or her employment options. Living with a disability should not be something you are reminded of daily while at work or something used against you by co-workers, supervisors, etc. Disability discrimination occurs when the person disabled, physically or mentally, receives unfair treatment due to his or her disability. Discriminating or harassing someone because of his or her disability in the workplace is prohibited and protected by many regulations.

What laws regulate disability discrimination?

California follows a couple sets of regulations when analyzing whether disability discrimination occurred. These laws may apply to not only employees but also job applicants. However, independent contractors usually do not benefit from these laws below because they are not deemed employees for these purposes.[i]

The Americans with Disabilities Act (ADA):
federal law that prohibits the abuse or discrimination of those who suffer from mental and physical disabilities even if reasonable accommodation is needed to complete that job.[ii]

The Fair Employment and Housing Act (FEHA):
California created regulation that prohibits different types of discrimination/discrimination in the workplace.[iii]

FEHA is the most widely used in California as it affords the most protection to employees. Further, FEHA applies to all employers regardless of number employees whereas the ADA requires the employer have at least 15 employees.[iv] An employer is defined as any person or agent acting on behalf of that person under FEHA.[v]

Further, because FEHA is more lenient and expansive in its definition of a disability, more Californians file complaints under this law.[vi] Moreover, FEHA does not have a limit or a cap to recovery where ADA does.[vii]

Which disabilities are protected?

Mental disability:
mental health has become a more prominent issue in today’s society. As times have changed, so has the law, fortunately. If an employee suffers from a mental disability, an employer cannot harass nor discriminate against the employee because of his or her health.[viii] Examples of mental health disorders include, but are not limited to: anxiety, learning disabilities, autism, schizophrenia, and depression.

Physical disabilities:
physical disabilities are those bodily injuries that impair the worker’s everyday life.[ix] With time, the disability will not get better. In order to prove a physical disability, an employee can show:

  • Physical impairment
  • Effected bodily system like neurological or
  • Limited mobility.[x]

Medical conditions:
a medical condition can cause an employee to miss work or suffer pain while working. If an employee is currently or in the future will suffer from a medical condition, an employer cannot harass that employee because of the condition.[xi]

Under California law, one is not automatically considered disabled just because she is pregnant. In order to obtain this type of leave, a doctor must show the woman cannot perform one or more of her essential functions of her job due to her pregnancy.[xii] A few examples of pregnancy disability include: bed rest (example given above); post-partum depression; hypertension, preeclampsia, and even morning sickness if severe enough.[xiii] As you can see, some of these events may occur before pregnancy. This type of leave is not exhausted to just post birth but can be used at any time.

After the baby is born, a woman is considered disabled under California law by her pregnancy.[xiv] Because every woman and every birth is different, the amount of time needed to recover from birth will vary.

obesity is usually not covered under one of the above laws because it is not deemed a disability. However, if the obesity was caused by an injury or some other mental impairment, it may qualify.[xv] The employee would have to prove this factor as well as his or her weight limits the ability to complete the job.

Even if one of the above is not proved, an employee is still protected from discrimination based off a perceived disability.[xvi] If an employer believes or has reason to believe the employer suffers from a disability, he or she cannot discriminate regardless if he or she is right or wrong.

What type of behavior is considered discrimination

Although employees may deal with unruly comments or actions daily, there are only certain instances when these actions reach the level of discrimination. In order to be labeled discrimination, the employee must be singled out or continuously endure certain actions.[xvii] Forms of discrimination include (but are not limited to): firing an employee because of the disability, favoring others over the employee because of his or her disability, refusing to hire an applicant because of disability, or paying them less, just to name a few.[xviii]

Reasonable accommodation

If an employee has been hired or is working with a disability, an employer may be asked to make accommodations for that employee. Reasonable accommodation arises when the employee asks for changes or alterations to his or her work space in order to fulfill work obligations.[xix] An employee may ask for a reasonable accommodation if he or she suffers from a disability. The term “reasonable” depends on the facts of the case and up to the court to decide. However, the accommodation cannot impose an undue hardship on the employer.[xx] Further, the employer must listen to the accommodation requested by the employee and try to work with he or she to make that accommodation.[xxi] This accommodation may require specific activities or efforts by the employer including: restructuring tasks; moving office; deadlines; timelines; how the position is handled and tasks are completed.[xxii] However, that accommodation may not result in risk to the employee or others in the office.[xxiii]

Who is liable if discrimination claim arises?

If an employee files a discrimination claim, he or she can do so personally against the aggressor or against her employer, or both. For instance, if the aggressor was another employee at a bank, the victim may sue the bank itself regardless of whether the employer knew or should have known about the discrimination.[xxiv]

Further, if the aggressor is a boss or supervisor, the employer will be strictly liable, meaning damages must be paid regardless of whether the employer knew or was at any fault. However, if the aggressor is another employee and not a person with authority, like a supervisor, the employer is not strictly liable. In fact, he or she will only be liable if:

  • Employer knew or should have known of the conduct and

  • Employer failed to take appropriate steps to alter the conduct.[xxv]

Ways an employer can avoid discrimination charges

An employer can avoid discrimination cases by training employees and informing them of what should and should be tolerated in the workplace. Moreover, creating a policy that is written, explained, and signed by the employees before entering the workforce can also hold workers more accountable for his or her actions. Although these implementations will not always limit discrimination, they hopefully will inform and deter the behavior because employees are put on notice of what is acceptable and what is not.

I think I have a case… what do I do?

If you feel you have been discriminated against due to your disability, you may have three options: speak with your employer or the human resources department, bring an administrative claim, or file a lawsuit. It is important to remember there is a one-year statute of limitations from the time of discrimination to bring a claim.[xxvi] In order to speed the process up and ensure you file within the allotted timeline, it is encouraged to seek help from a lawyer. Moreover, there may be fear that if you complain, the employer will fire you. However, this is illegal under California law and is known as retaliation.[xxvii] An employer cannot terminate you just because you have filed a claim against he or she.

Although having a lawyer may seem expensive, in many of these cases, you will not pay for anything except costs associated with creating documents like printing fees, court fees, etc. the lawyer will be paid for his or her services either by the defendant or from a percentage of your winnings.

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Trip and fall cases are challenging because of the complexity of the issues involved. To establish liability, trip and fall cases may require safety engineers, structural engineers, or any other experts qualified to testify regarding the standard of care in the specific situation and whether it was breached.

Legal Reference

Fair Employment and Housing Act (FEHA)

[i] Cal. Code Regs., tit. 2, § 11008(c)(1)

[ii] 42 U.S.C. § 12101(b)(2)

[iii] Gov. Code, § 12940, subd. (j)(1)

[iv] Gov. Code, § 12940, subd. (j)(4)(A)

[v] Cal. Gov’t Code § 12940(j)(4)(A)

[vi] 42 U.S.C. § 12101(1)(A)

[vii] 42 U.S.C. § 1981a(b)(3)

[viii] Gov. Code, § 12926, subd. (i)

[ix] Gov. Code, § 12926, subd. (m)(1)

[x] Gov. Code, § 12926, subd. (m)(1)

[xi] Gov. Code, § 12926, subd. (i)

[xii] Cal. Code of Regs., tit. 2, § 11035, subd. (f)

[xiii] Cal. Code of Regs., tit. 2, § 11035, subd. (f)

[xiv] Cal. Code of Regs., tit. 2, § 11035, subd. (f)

[xv] Colmenares v. Braemar Country Club, Inc. (2003) 29 Cal.4th 1019

[xvi] Gov. Code, § 12926.1, subd. (c)

[xvii] Gov. Code, § 12940, subd. (j)(4)(A)

[xviii] Govt’ Code, § 12940, subd. (a).

[xix] Gov. Code, § 12940, subd. (a)

[xx] Cal. Code of Regs., tit. 2, § 11068, subd. (e).

[xxi] Cal. Code of Regs., tit. 2, § 11068, subd. (e).

[xxii] Gov. Code, § 12926, subd. (p)(1).

[xxiii] Sterling Transit Co. v. Fair Employment Practice Com. (1981) 121 Cal.App.3d 791, 798

[xxiv] Meritor Sav. Bank, FSB v. Vinson (1986) 477 U.S. 57, 68

[xxv] Gov. Code, § 12940, subd. (j)(1)

[xxvi] Gov. Code, § 12960

[xxvii] Gov. Code, § 12940, subd. (h)