Are you wondering if you have been a victim of employee disability discrimination in California?
According to California Fair Employment and Housing Act (FEHA), it is unlawful for the employer to discriminate against any person based on mental or physical disability. Americans with Disabilities Act (ADA) protects qualified employees and applicants from employment discrimination based on disability.
Elements of Disability Discrimination
According to CACI 2540 to establish the claim of employment discrimination based on disability the plaintiff must be able to establish the following elements:
- Defendant was the employer of the plaintiff or the plaintiff applied to the defendant for a job
- Defendant knew that the plaintiff had a physical disability
- Plaintiff was able to perform the essential job duties with reasonable accommodation for his physical condition
- Defendant discharged or refused to hire the plaintiff or subjected the plaintiff to an adverse employment action or the plaintiff was constructively discharged
- Plaintiff’s physical condition was a substantial motivating reason for defendant’s decision to discharge or refuse to hire the plaintiff
- Defendant’s conduct caused harm to the plaintiff
Plaintiff doesn’t need to prove that the defendant held any ill will or animosity toward him personally because he was perceived to be disabled.
Examples of Discrimination Against an Individual Because of His Disability
Here are some examples of discrimination against an individual because of the disability in any aspect of employment:
- Refusing to employ or hire a person with disabilities
- Refusing to select a person with disabilities for a training program
- Bearing, firing or discharging a person with disabilities
- Reducing payment
- Denying benefits
- Denying in a promotion of a person with disabilities
- Denying in reinstatement a person with disabilities
- Assigning different duties to a person with disabilities
- Any other discrimination in any way
Reasonable Accommodation for People With Disabilities
According to California Fair Employment and Housing Act employers are required to provide reasonable accommodations for a person with a protected disability or medical condition to apply for jobs and to perform the main functions unless it would cause an excessive hardship. A reasonable accommodation is an adjustment or change to the work environment and the position which enables a person to perform the main functions of the job the same way that a person without disabilities does. An excessive hardship means a significantly expensive or difficult to implement the change.
Examples of Reasonable Accommodation:
- Changing a work schedule, such as allowing a part-time work
- Allowing an employee with disabilities to work from home
- Modifying or adjusting training materials, exams and policies
- Providing interpreters or readers
- Providing modified devices, equipment or furniture
Filing a Employee Disability Discrimination Claim With the California Department of Fair Employment and Housing or U.S. Equal Employment Opportunity Commission
Depending on the type of the case and the jurisdiction and type of discrimination case, a person can file with either the EEOC or DFEH. Claims must be filled in accordance with the statute of limitations. The employer can file the claim as soon as he became aware of the discriminatory conduct.
After the agency receives a complaint from the employer, an investigation takes place, which can last of up to 10 months. During this investigation, the agency will obtain relevant evidence of the employer’s unlawful conduct and in case it determines that workplace discrimination occurred, the agency can undertake one of the following steps:
- The agency can arrange a settlement meeting between the employee and the employee. The agency will mediate a suitable settlement to end the claim and compensate the injured employee.
- In case the settlement negotiations fail or the investigation deems that no discrimination took place, the agency will issue a “right to sue” notice. The employee can still pursue a lawsuit if he decides to do so.
It is important to mention that filing a claim with one agency will usually automatically file a claim with the other since there is a work sharing agreement between two agencies.
Do you believe that your employer is in violation of the FEHA? An employment lawyer near you should be able to determine whether your rights have been broken after understanding the details of your specific situation.