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Disability Discrimination

Disabled employees are entitled to a workplace free from discrimination and harassment. But when this right is violated, it’s important that they know what laws protect them and how they can seek justice against their employers.

The Americans With Disabilities Act

The Americans With Disabilities Act (ADA) was passed in 1990 to protect disabled workers and their immediate family members from discrimination and harassment at work. Employers often believe disabled employees cannot handle the same roles and responsibilities of nondisabled employees, so this legislation is incredibly important to ensure disabled individuals are treated equally.

Under the ADA, employers cannot take an employee’s disability into consideration when making any decisions related to hiring, firing, promoting, wage determinations, or job benefits. This is a federal law that applies to all employers with fifteen or more employees.

California Fair Employment and Housing Act

Employees in California are protected by both the ADA and the Fair Employment and Housing Act, which is a state law. The FEHA offers discrimination protection to a much broader range of disabled employees than the ADA does. The ADA does not allow you to file a disability discrimination suit unless your disability “substantially” limits a major life activity. On the other hand, the FEHA only requires that your disability limits a major life activity, regardless of the extent of the limitation.

The two laws also disagree when it comes to defining a “major life activity.” The FEHA includes work as a major life activity, meaning if your disability limits your ability to work a job, you qualify as a disabled person under this law. However, the ADA does not have work listed as a major life activity, so you must be able to show how your disability limits your ability to perform other activities outlined in the ADA.

Finally, the FEHA and ADA have different processes for evaluating an individual to determine whether he is disabled or not. The ADA requires a disabled person to take an evaluation in a mitigated state. For example, if an employee who was hard of hearing were to be evaluated following the ADA’s guidelines, he would be required to wear a hearing aid at the time of the evaluation. This type of mitigation is not required under a FEHA evaluation.

The FEHA allows permits individuals to file a disability discrimination suit if their employer has discriminated against them because of a perceived disability, even if it doesn’t exist. This is not allowed under the ADA. Overall, disabled individuals will find it is much easier to gain protection under the FEHA than it is under the ADA.

“Qualified Individual With A Disability” Defined

An employee is not covered by the ADA or FEHA unless he or she is a “qualified individual with a disability” as defined by these two laws. To meet this qualification, you must first be able to perform the duties of your job. If you cannot perform the duties, you cannot file a disability discrimination lawsuit. For example, a blind person cannot possibly perform the duties of a bus driver job, and therefore is not able to file a discrimination lawsuit if he or she is not hired for the position.

The laws also make it clear that not every mental or physical impairment qualifies as a disability. You must meet the conditions of a disabled person as outlined in the ADA and FEHA in order to qualify for protection and be permitted to file a disability discrimination lawsuit.

The Right to Reasonable Accommodations

Under the ADA, employers are also required to make accommodations for disabled employees as long as they are considered reasonable. Examples of these accommodations may include installing a wheelchair ramp for a handicapped employee or allowing an employee with cancer to take time off of work to receive medical treatment. It is important to note employers are under no obligation to make an accommodation unless the disabled employee requests it.

Employers must make these accommodations unless they can prove doing so would cause an undue hardship on the business. For example, an employer could say installing a wheelchair ramp would put an undue hardship on the business if they can prove they do not have the financial resources to make this accommodation.

Examples Of Disability Discrimination

Some examples of disability discrimination include:

  • Failure to accommodate
  • Loss of job after onset of disability
  • Demotion/retaliation because of need for accommodation
  • Termination when on protected leave
  • Negative treatment after an injury or disability
  • Failure to engage in the interactive process

If Your Rights Are Violated

If you are a victim of disability discrimination in the workplace, reach out to the employment law attorneys at Shegerian Conniff. Our experienced team will help you seek the justice you deserve.

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