Sacramento Disability Discrimination Lawyer
Being unemployed in a troubled economy is bad; being disabled and unemployed is worse. If you have limitations as an employee, employers may feel they have an economic incentive to hire someone else. If you are disabled it is important to know the laws pertaining to disability discrimination.
Both the federal Americans with Disabilities Act (ADA) and California’s Fair Employment and Housing Act (FEHA) protect employees with disabilities from employment discrimination. The laws apply to similar kinds of health problems and employment decisions, but FEHA has a more worker-friendly definition of “disability” requiring only that it limit a major life activity, as opposed to the ADA requirement that the activity be substantially limited.
Don’t let that listing of specific disorders and injuries deceive you—it isn’t the specific condition that determines whether an employee is entitled to protection against discrimination. That determination is specific to the individual employee and the “essential” job functions. In other words, the inquiry isn’t “does Joe have diabetes?” but “does Joe’s diabetes prevent him from performing this job?”
Under FEHA, the employer cannot request that an applicant undergo a medical exam until it has offered a job, conditioned on the exam. Even then, it can only require an exam if it does so for all applicants for similar positions. On the other hand, once an employer rejects an applicant based on the applicant’s disability, the applicant has the right to submit an independent medical opinion.
Employers can only hold disability against you if:
- Even with reasonable accommodation, you can’t perform the job’s essential functions
- Even with reasonable accommodation, your performance of the job poses an imminent and substantial danger to yourself or others
Accommodation for Disability
Upon request, the employer has an obligation to pursue ways of accommodating people with disabilities. It’s a strong obligation. Employers can only escape accommodations that would subject them to “undue hardship.” The most common kinds of accommodations may include:
- Modifying the duties of the job and/or where it is performed
- Modifying the work schedule (especially allowing time for needed treatments, rehabilitation, and the like)
- Modifying the work area and access routes, such as by installing ramps
- Obtaining special equipment and furniture
The “undue hardship” defense is often raised by employers automatically; as a way of avoiding the need to alter the workplace routine. An experienced disability discrimination attorney knows that the evidence frequently shows that, while accommodation may be inconvenient, it is far from a “hardship,” let alone one so burdensome that it can be considered “undue.” In fact, in some cases the employer raises the defense without having bothered to investigate what kinds of an accommodation might work, so that it really has no idea what type of burden accommodation would impose on its operations.
A provision of the law that strongly works in favor of the disabled employee is the requirement that the employer meet a request for accommodation with a “timely good faith interactive process” to see if accommodation is possible. That requirement has three separate components—timeliness, good faith, and interactive–and employers often fall short on one or more. Violating this requirement is amounts to a separate violation of discrimination law.
Help with Your Fight against Disability Discrimination
An experienced disability discrimination attorney is invaluable in navigating the many laws that may affect a disabled person’s rights. For example, is a finding that you are disabled—temporarily or permanently, partially or totally—for purposes of worker’s compensation enough for an employer to treat you as unemployable for purposes of FEHA, or does the employer still have an obligation to explore accommodation? What impact does FEHA’s prohibition against disability discrimination have when an employee who has been out on disability leave exhausts the limits of that leave?
The attorneys at Labor Law Office, APC in Sacramento have represented clients in discrimination cases for 20 years. If you or someone you know is disabled and experiencing discrimination, call us for a free case evaluation. Legal time limits are in effect, so don’t delay. Call Labor Law Office, APC today.