Disability Discrimination

DISABILITY DISCRIMINATION IN CALIFORNIA - THE NEW FRONTIER

Probably no area of California employment law is evolving as quickly and needs lawyers with experience and expertise as much as claims dealing with physical and mental disabilities. Discrimination, harassment and retaliation against employers with disabilities is prohibited by both the Americans with Disabilities Act of 1990 (ADA) and the California Fair Employment and Housing Act (FEHA). These statutes also require employers to engage in an interactive process with disabled employees to determine if it is possible to provide them with reasonable accommodations so they can perform the essential functions of their job or another vacant position for which they are qualified.

In January, 2001, the California legislature amended FEHA to provide broader coverage and protections for employees than the ADA. California now defines physical disability as a physiological condition which creates a “limitation” in a major like activity rather than the “substantial limitation” standard used in the ADA. “Major life activities” are to be broadly construed under FEHA, and limitations are to be determined without regard to mitigating measures. Because of these changes, California employees have far more protections than employees in virtually any other state. As a result, we have seen a drastic increase in the amount of litigation concerning whether an employer has provided reasonable accommodations for disabled employees.

It is important for both an employer and employee to obtain legal representation early in the process when it comes to disability discrimination issues. The law imposes an affirmative obligation on both parties to engage in the “interactive process” to determine whether reasonable accommodations are possible. A lot of litigation concerns whether an employer engaged in good faith discussions with the employee concerning the availability of reasonable accommodations, including alternative positions. Failure to engage in the good faith “interactive process” by either an employer or employee can be determinative on the validity of certain disability discrimination claims. The accommodation process is a dynamic one with many considerations to be evaluated. The FEHA requires employers to make reasonable accommodation for the known disabilities (mental or physical) of employees to enable them to perform a position’s essential functions, unless doing so would produce undue hardship on the employer’s operations or would create a danger or threat of safety to the disabled employee or others. Some possible reasonable accommodations that may be considered include, but are not limited to:

• Making existing facilities used by employees readily accessible to, and usable by, individuals with disabilities;

• Job restructuring, part-time or modified work schedules, reassignment to a vacant position, acquisition or modification of equipment or devices, adjustment or modifications of examinations, training materials or policies, the provision of qualified readers or interpreters, and other similar accommodations for individuals with disabilities; or

• Providing a finite leave of absence for a disabled employee to recuperate or care for his or her disability.

The Bononi Law Group, LLP advices both employers and employees on virtually all aspects of disability discrimination and medical leave employment claims. With the ever increasing complexities of the law in this area, including the effect of new legislation and cases interpreting both employer and employee rights, it is important to retain experienced and knowledgeable lawyers like those at The Bononi Law Group, LLP to advice you of your rights.

Contact us now for advice on how to avoid problems related to the disability law, to reasonably accommodate employees, or handle complaints or inquiries against an employer.