Often, employees with a disability are treated poorly. In fact, many are terminated after an employer discovers that an employee has a disability. Disability discrimination is illegal. California’s Fair Housing and Employment Act (FEHA) makes it illegal to refuse to hire, refuse to select a person for a training program leading to employment, or to fire/terminate a person from employment or from a training program leading to employment, or to discriminate against a person in compensation or in terms, conditions, or privileges of employment, or demote them, because of a disability. The federal counterpart is the American with Disability Act (ADA).

The FEHA standard requires that the employee who had been discriminated against possess a disability that limits a major life activity. It is a broad standard when defining a “major life activity.” In the FEHA,“major life activities” shall be broadly construed and shall include physical, mental, and social activities, as well as working. Thus, if the disability of an employee limits their ability to perform a job, the qualifications have been met.

To be protected, an employee must be a “qualified individual with a disability.” This means an employee must have the skill, education, experience or other requirements for the job. In other words, absent the disability (or need for a reasonable accommodation), the employee can perform all of the “essential functions” of the job. Thus, if an employee has no computer skills at all, the employee is not qualified to be a computer programmer. If an employee cannot see, it is not discrimination to prohibit the worker from being a bus driver. The point is that the employee has to be able to do the job and have the skills, absent the disability where they need some protections, e.g., a reasonable accommodation.

In California, if an employee is disabled, the company must provide a “reasonable accommodation” and engage in the interactive process to determine if and/or what accommodation is appropriate. It can be a violation for a company not to engage in this discussion with the disabled employee and to fail to provide a reasonable accommodation. Failure to engage is a separate violation from a failure to provide a reasonable accommodation.

What is “reasonable” often depends on the facts. It may mean providing a chair to an employee who needs to sit to perform the task, a different type of chair for an employee, a wheelchair ramp for an employee in a wheelchair, a modified computer screen, longer breaks, a larger number of short breaks, a reduction in tasks, restrictions on tasks, like the amount of weight an employee may lift, closer access to a restroom and so on. One of the most common types of accommodation is time-off, i.e., a leave of absence. The issue then becomes how long does an employer have to give the employee off to deal with the disability, one week, one month, one year, longer? This requires a factual analysis and varies, and is determined on a case by case basis. The same is with any accommodation, as what is reasonable depends upon the circumstances. It may be reasonable for one employer to provide an accommodation that would not be reasonable for others for companies of different sizes and resources. The interactive process is required for the parties to discuss options and see what is necessary and what may be reasonable.

Even if an employee is not disabled, if an employer perceives an employee as disabled and discriminates or harasses an employee as a result of the perceived disability, it is illegal.

• Failing to hire an employee as a result of a disability (e.g., in a wheelchair) or perceived disability
• Firing an employee who tells an employer they are disabled
• Firing an employee for needing or requesting an accommodation
• Firing an employee who seeks time off under the FEHA, under the Family and Medical Leave Act (FMLA) or California Family Rights Act (CFRA)
• Failing to provide a reasonable accommodation
• Failure to engage in the interactive process to discuss reasonable accommodations

Not only is it illegal to discriminate against an employee because of a disability or perceived disability, but it is also illegal to harass someone as a result of their disability or perceived disability. Moreover, it is also illegal to retaliate against an employee who complains about such discrimination and/or harassment.

If you think that you have been discriminated against, harassed, or were terminated because of a disability or perceived disability, or retaliated against for complaints of illegal disability discrimination, contact the Wagner Legal Group for a free consultation or call (310) 857-5293.