Los Angeles Disability Discrimination Attorneys: There is a misconception that disabled people do not want to work, or that disabled individuals simply cannot or will not be as valuable in the workplace as another able bodied individual.
In the state of California, it is estimated that 33.5% of disabled individuals are employed and 9.5% disabled individuals are currently not working but are looking for gainful employment (Cornell University, 2014). These are people who want to be employed and who want to have a positive impact on our economy.
Unfortunately many give up the search on a regular basis because they feel or know that they are being discriminated against when interviewing for or working in a job.
Someone who is a “qualified individual with a disability” is an individual who meets the skill, education, experience or other requirements of an employment position which he or she holds, or which he or she is seeking. These individuals can perform all of the “essential functions” of a position either with or without what is known as “reasonable accommodation” (which we will address a bit later on).
It is important that disabled workers are qualified. If an individual is “qualified” to perform essential job functions (apart from any limitations due to his or her disability), then the employer must consider if a job applicant can perform these functions with reasonable accommodation.
What may be most important for those who are applying to jobs is the written job description. Should a written job description be prepared in advance, then this can be used as evidence (though not conclusive evidence) that an applicant can or could have performed essential functions of the job.
On that note, employers do not need to prefer a “qualified applicant with a disability” over another equally or more qualified applicant. Employers can hire an applicant who best fulfills the job role. For example, if a disabled applicant types 35 words per minute but an able bodied applicant can type 75 words per minute and they are performing data entry, the employer can hire the applicant with the higher typing speed.
Employment discrimination is prohibited against “qualified individuals with disabilities”. This term covers both employees and applicants for employment.
First, an individual is considered to have a disability if he or she has a physical or mental impairment which imposes substantial limitations on one or more life activities, including a medical condition that limits the employee’s ability to work. These are also individuals who are medically known to have an impairment or who are regarded as having an impairment.
Some of the most common impairments include:
There are other impairments which may fall under the general “disability” umbrella, including:
Examples of what would likely not be covered are non-chronic conditions such as a sprain, the flu, or a broken limb.
An individual may also be considered to have an impairment if they have a record of disability, such as a person who has or is recovering from cancer or a mental illness. Those who also have a substantially limiting impairment may also qualify, such as someone who has a severe facial disfigurement but who was denied employment because an employer believed that his or her customers would have “negative reactions” from customers and/or co-workers.
The Fair Employment and Housing Act generally accepts that a disability may fall under one of the following two umbrellas:
Someone who suffers from a physical disability may have a physiological disorder, disease, condition, anatomical loss or cosmetic disfigurement which affects one or more body systems. This results in a limitation on the person’s activity. Some of these body systems may include:
A mental disability is a psychological or mental condition or disorder which can impede one’s activities in life. This may be due to mental retardation, emotional or mental stress, organic brain syndrome, or a specific learning disability. These mental or psychological disorders also require special education (or another related service)
Mental conditions are not the same as a mental disability. A mental condition is considered to be a health impairment which is related to or associated with a genetic characteristics or a diagnosis of cancer (or a history of cancer). As an example, women who carry an established gene that increases their chance of breast cancer are protected under state law.
FEHA helps protect applicants and employees with disabilities by demanding the following two things from employers:
Reasonable accommodation is any appropriate measure that allows a disabled applicant or employee to perform essential job role functions. This may include modifying a work schedule, modifying or purchasing new equipment, restructuring jobs, and modifying examinations and policies. See California Government Code § 12926.1(p)(2); 2 CCR § 11068(d)(1).
Not every accommodation which a disabled applicant or employee may deem necessary for the job may be legally required by FEHA. There are legal reasons for an employer to permissibly refuse to accommodate the request for “reasonable accommodation”, with the most common being because it would cause “undue hardship” to an employer. An employer must prove this by showing one or more of the following factors:
For example, let’s say an applicant has a severe vision impairment applies for a job with a small market where are only five other employees. The applicant requires assistance to work at the register by having one of those four other employees present at all times. If the business in question could not afford additional staff to accommodate the employee, or it could not afford the cost of remodeling to accommodate having two employees at the same time, they may be allowed to not provide “reasonable accommodation”.
An employer cannot simply demand you are 100% healed to return to work. See Gelfo v. Lockheed Martin Corp., 140 Cal. App. 4th 34, 49 n.11 (2006) (“A policy requiring an employee be ‘100 percent healed’ before returning to work is a per se violation even under the Americans with Disabilities Act [ADA] because it permits an employer to avoid the required individualized assessment of the employee’s ability to perform the essential functions of the job with or without accommodation.”); see also McGregor v. National R.R. Passenger Corp., 187 F. 3d 1113, 1116 (9th Circ. 1999) (stating that a policy requiring employees to be ‘100% healed’ or ‘fully healed’ after an injury is facially discriminatory and constitutes a per se violation of the ADA).
Employers must engage in something which is called the “interactive process” with their disabled employees. This process includes taking the time to sit down with the disabled individual to determine what his or her job limitations are, and then identifying potential accommodations and assessing how effective he or she will be. See Wysinger v. Auto. Club of S. Cal., 157 Cal. App. 4th 413, 424 (2007) (“Under FEHA, an employer must engage in a good faith interactive process with the disabled employee to explore the alternatives to accommodate the disability. . . . Failure to engage in this process is a separate FEHA violation independent from an employer’s failure to provide a reasonable disability accommodation, which is also a FEHA violation.”)
California Government Code section 12940(n) provides that it is unlawful “[f]or an employer…to fail to engage in a timely, good faith, interactive process with the employee…to determine effective reasonable accommodations, if any, in response to a request for reasonable accommodation by an employee…with a known physical or mental disability or known medical condition.” Nadaf-Rahrov v. Neiman Marcus Group, Inc., 166 Cal. App. 4th 952, 978-979 (2008). “[T]he interactive process requires communication and good-faith exploration of possible accommodations between employers and individual employees with the goal of identify[ing] an accommodation that allows the employee to perform the job effectively. . . . [F]or the process to work both sides must communicate directly, exchange essential information and neither side can delay or obstruct the process.” Id. at 984-985; see also Wysinger v. Auto. Club of S. Cal., 157 Cal. App. 4th 413, 424 (2007) (“Under FEHA, an employer must engage in a good faith interactive process with the disabled employee to explore the alternatives to accommodate the disability. . . . Failure to engage in this process is a separate FEHA violation independent from an employer’s failure to provide a reasonable disability accommodation, which is also a FEHA violation.”)
California law is very clear that an employer is mandated to initiate the interactive process when it becomes aware of an employee’s request for an accommodation. See 2 CCR § 11069 (an employer “shall initiate an interactive process when . . . (1) an applicant or employee with a known physical or mental disability or medical condition requests reasonable accommodations, or (2) the employer or other covered entity otherwise becomes aware of the need for an accommodation through a third party or by observation”).
“Once initiated, the employer has a continuous obligation to engage in the interactive process in good faith.” Swanson v. Morongo Unified School Dist., 232 Cal. App. 4th 954, 971-972 (2014). This means that an employer cannot just engage in the interactive one time where additional interaction is needed to arrive at an appropriate reasonable accommodation. Accordingly, the employer should engage in the interactive process once it learns that the employee’s condition has worsened or the employee has difficulty in performing his or her duties due to their disability.
The preferences of what accommodations will best suit the disabled individual should be taken into consideration, but at the end of the day it will be what is the best fit for the employee and the employer. It is also important that this “consultation” be conducted in “good faith”, meaning that both the employer and the employee have the opportunity to directly communicate with one another to make note of essential information to ensure that appropriate accommodations are made.
The ADA prohibits a potential employer from asking an application or requiring an application to take a medical examination prior to making a job offer. Your employer also cannot make pre-employment inquiries about your disability, including the nature of the severity of it.
What an employer can ask are questions that pertain to one’s ability to perform specific job functions. For example, an employer can ask someone with a disability to describe or demonstrate how he or she would perform a specific task, either with or without accommodation.
Employers do also have the right to place conditions on a job offer based on the satisfactory result of a post-offer medical inquiry or examination, but only if this is a requirement of all employees who are entering the same job category. It is important to note that a post-offer inquiry or exam also does not have to be job related and that it does not need to be consistent with business necessity.
To further complicate matters, if an individual is not hired because a post-offer medical inquiry or examination reveals a disability, the reasons for not hiring that individual must be related to the job and consistent with the necessity of the business. The employer must also prove that they had no reasonable accommodation available which would allow the disabled individual to perform their essential job functions, or that the accommodation would result in undue hardship.
The Fair Employment and Housing Act basically defines two categories of disability: (1) mental disability; and (2) physical disability. Each category contains its own specific definitions. Additionally, under the FEHA, an employee with a “medical condition” is also entitled to accommodation.
A physical disability is any physiological disease, disorder, condition, cosmetic disfigurement, or anatomical loss that affects one or more of several body systems and limits a major life activity. The body systems listed include the neurological, immunological, musculoskeletal, special sense organs, respiratory, including speech organs, cardiovascular, reproductive, digestive, genitourinary, hemic and lymphatic, skin and endocrine systems. A physiological disease, disorder, condition, cosmetic disfigurement, or anatomical loss limits a major life activity, such as working, if it makes the achievement of the major life activity difficult.
When determining whether a person has a disability, an employer cannot take into consideration any medication or assistive device, such as wheelchairs, eyeglasses or hearing aids, that an employee may use to accommodate the disability. However, if these devices or mitigating measures “limit a major life activity,” they should be taken into consideration. Physical disability also includes any other health impairment that requires special education or related services; having a record or history of a disease, disorder, condition, cosmetic disfigurement, anatomical loss, or health impairment which is known to the employer; and being perceived or treated by the employer as having any of the aforementioned conditions.
A mental disability is any mental or psychological disorder or condition, such as mental retardation, organic brain syndrome, emotional or mental illness, or specific learning disabilities, that limits a major life activity, or having any other mental or psychological disorder or condition that requires special education or related services. An employee who has a record or history of a mental or psychological disorder or condition which is known to the employer, or who is regarded or treated by the employer as having a mental disorder or condition, is also protected.
A medical condition is any health impairment related to or associated with a diagnosis of cancer or a record or history of cancer, or a genetic characteristic. A “genetic characteristic” can be a scientifically or medically identifiable gene or chromosome or an inherited characteristic that could statistically lead to increased development of a disease or disorder. For example, women who carry a gene established to statistically lead to breast cancer are protected under state law.
When it comes to applicants and employees with disabilities, the FEHA generally requires two things of employers.
Those requirements are: (1) employers must provide reasonable accommodation for those applicants and employees who, because of their disability, are unable to perform the essential functions of their job; and (2) employers must engage in a timely, good faith interactive process with applicants or employees in need of reasonable accommodation.
However, before engaging applicants or employees, the employer should have some understanding of what constitutes a “disability” under state law. Before an applicant or employee must be reasonably accommodated, he or she must establish that they have a disability as defined under the Fair Employment and Housing Act.
Reasonable accommodation is any appropriate measure that would allow the applicant or employee with a disability to perform the essential functions of the job. It can include making facilities accessible to individuals with disabilities or restructuring jobs, modifying work schedules, buying or modifying equipment, modifying examinations and policies, or other accommodations. For example, providing a keyboard rest for a person with carpal tunnel syndrome may qualify as a reasonable accommodation. A person with asthma may require that the lawn care be rescheduled for a non-business day.
The FEHA does provide legal reasons an employer can permissibly refuse to accommodate a request for reasonable accommodation from an applicant or employee. One of the legal reasons is whether the accommodation would present an undue hardship to the operation of the employer’s business. If an employer denies accommodation because it would be an “undue hardship,” it must be shown that the accommodation requires significant difficulty or expense, when considered in the light of the following factors:
For example, an applicant with a severe vision impairment applies for employment with a small market that has only four other employees. The applicant requires assistance to work the register by having another employee present at all times. The business in question would not have to provide the accommodation if, for example, it could not afford the cost of the additional staff or could not afford the cost of remodeling to accommodate two employees at the same time.
The interactive process includes consulting with the individual to ascertain the precise job-related limitations and how they could be overcome with a reasonable accommodation and identifying potential accommodations and assessing their effectiveness. Although the preferences of the individual in the selection of the accommodation should be considered, the accommodation implemented should be one that is most appropriate for both the employee and the employer. The interactive process must be conducted in “good faith,” meaning that the employer and employee must communicate directly with each other to determine essential information and that neither party can delay or interfere with the process. To demonstrate good-faith engagement in the interactive process, the employer should be able to point to cooperative behavior that promotes the identification of an appropriate accommodation.
Employment discrimination is prohibited against “qualified individuals with disabilities.” This includes applicants for employment and employees. An individual is considered to have a “disability” if s/he has a physical or mental impairment that substantially limits one or more major life activities, has a record of such an impairment, or is regarded as having such an impairment. Persons discriminated against because they have a known association or relationship with an individual with a disability also are protected.
The first part of the definition makes clear that the ADA applies to persons who have impairments and that these must substantially limit major life activities such as seeing, hearing, speaking, walking, breathing, performing manual tasks, learning, caring for oneself, and working. An individual with epilepsy, paralysis, HIV infection, AIDS, a substantial hearing or visual impairment, mental retardation, or a specific learning disability is covered, but an individual with a minor, non-chronic condition of short duration, such as a sprain, broken limb, or the flu, generally would not be covered.
The second part of the definition protecting individuals with a record of a disability would cover, for example, a person who has recovered from cancer or mental illness.
The third part of the definition protects individuals who are regarded as having a substantially limiting impairment, even though they may not have such an impairment. For example, this provision would protect a qualified individual with a severe facial disfigurement from being denied employment because an employer feared the “negative reactions” of customers or co-workers.
A qualified individual with a disability is a person who meets legitimate skill, experience, education, or other requirements of an employment position that s/he holds or seeks, and who can perform the “essential functions” of the position with or without reasonable accommodation. Requiring the ability to perform “essential” functions assures that an individual with a disability will not be considered unqualified simply because of inability to perform marginal or incidental job functions. If the individual is qualified to perform essential job functions except for limitations caused by a disability, the employer must consider whether the individual could perform these functions with a reasonable accommodation. If a written job description has been prepared in advance of advertising or interviewing applicants for a job, this will be considered as evidence, although not conclusive evidence, of the essential functions of the job.
No. An employer is free to select the most qualified applicant available and to make decisions based on reasons unrelated to a disability. For example, suppose two persons apply for a job as a typist and an essential function of the job is to type 75 words per minute accurately. One applicant, an individual with a disability, who is provided with a reasonable accommodation for a typing test, types 50 words per minute; the other applicant who has no disability accurately types 75 words per minute. The employer can hire the applicant with the higher typing speed, if typing speed is needed for successful performance of the job.
An employer may not ask or require a job applicant to take a medical examination before making a job offer. It cannot make any pre-employment inquiry about a disability or the nature or severity of a disability. An employer may, however, ask questions about the ability to perform specific job functions and may, with certain limitations, ask an individual with a disability to describe or demonstrate how s/he would perform these functions.
An employer may condition a job offer on the satisfactory result of a post-offer medical examination or medical inquiry if this is required of all entering employees in the same job category. A post-offer examination or inquiry does not have to be job-related and consistent with business necessity.
However, if an individual is not hired because a post-offer medical examination or inquiry reveals a disability, the reason(s) for not hiring must be job-related and consistent with business necessity. The employer also must show that no reasonable accommodation was available that would enable the individual to perform the essential job functions, or that accommodation would impose an undue hardship. A post-offer medical examination may disqualify an individual if the employer can demonstrate that the individual would pose a “direct threat” in the workplace (i.e., a significant risk of substantial harm to the health or safety of the individual or others) that cannot be eliminated or reduced below the “direct threat” level through reasonable accommodation. Such a disqualification is job-related and consistent with business necessity. A post-offer medical examination may not disqualify an individual with a disability who is currently able to perform essential job functions because of speculation that the disability may cause a risk of future injury.
After a person starts work, a medical examination or inquiry of an employee must be job-related and consistent with business necessity. Employers may conduct employee medical examinations where there is evidence of a job performance or safety problem, examinations required by other Federal laws, examinations to determine current fitness to perform a particular job, and voluntary examinations that are part of employee health programs.
Information from all medical examinations and inquiries must be kept apart from general personnel files as a separate, confidential medical record, available only under limited conditions.
Tests for illegal use of drugs are not medical examinations under the ADA and are not subject to the restrictions of such examinations.
No. The ADA does not require employers to develop or maintain job descriptions. However, a written job description that is prepared before advertising or interviewing applicants for a job will be considered as evidence along with other relevant factors. If an employer uses job descriptions, they should be reviewed to make sure they accurately reflect the actual functions of a job. A job description will be most helpful if it focuses on the results or outcome of a job function, not solely on the way it customarily is performed. A reasonable accommodation may enable a person with a disability to accomplish a job function in a manner that is different from the way an employee who is not disabled may accomplish the same function.
Reasonable accommodation is any modification or adjustment to a job or the work environment that will enable a qualified applicant or employee with a disability to participate in the application process or to perform essential job functions. Reasonable accommodation also includes adjustments to assure that a qualified individual with a disability has rights and privileges in employment equal to those of employees without disabilities.
Examples of reasonable accommodation include making existing facilities used by employees readily accessible to and usable by an individual with a disability; restructuring a job; modifying work schedules; acquiring or modifying equipment; providing qualified readers or interpreters; or appropriately modifying examinations, training, or other programs. Reasonable accommodation also may include reassigning a current employee to a vacant position for which the individual is qualified, if the person is unable to do the original job because of a disability even with an accommodation. However, there is no obligation to find a position for an applicant who is not qualified for the position sought. Employers are not required to lower quality or quantity standards as an accommodation; nor are they obligated to provide personal use items such as glasses or hearing aids.
The decision as to the appropriate accommodation must be based on the particular facts of each case. In selecting the particular type of reasonable accommodation to provide, the principal test is that o effectiveness, i.e., whether the accommodation will provide an opportunity for a person with a disability to achieve the same level of performance and to enjoy benefits equal to those of an average, similarly situated person without a disability. However, the accommodation does not have to ensure equal results or provide exactly the same benefits.
An employer is only required to accommodate a “known” disability of a qualified applicant or employee. The requirement generally will be triggered by a request from an individual with a disability, who frequently will be able to suggest an appropriate accommodation. Accommodations must be made on an individual basis, because the nature and extent of a disabling condition and the requirements of a job will vary in each case. If the individual does not request an accommodation, the employer is not obligated to provide one except where an individual’s known disability impairs his/her ability to know of, or effectively communicate a need for, an accommodation that is obvious to the employer. If a person with a disability requests, but cannot suggest, an appropriate accommodation, the employer and the individual should work together to identify one. There are also many public and private resources that can provide assistance without cost.
The individual with a disability requiring the accommodation must be otherwise qualified, and the disability must be known to the employer. In addition, an employer is not required to make an accommodation if it would impose an “undue hardship” on the operation of the employer’s business. “Undue hardship” is defined as an “action requiring significant difficulty or expense” when considered in light of a number of factors. These factors include the nature and cost of the accommodation in relation to the size, resources, nature, and structure of the employer’s operation. Undue hardship is determined on a case-by-case basis. Where the facility making the accommodation is part of a larger entity, the structure and overall resources of the larger organization would be considered, as well as the financial and administrative relationship of the facility to the larger organization. In general, a larger employer with greater resources would be expected to make accommodations requiring greater effort or expense than would be required of a smaller employer with fewer resources.
If a particular accommodation would be an undue hardship, the employer must try to identify another accommodation that will not pose such a hardship. Also, if the cost of an accommodation would impose an undue hardship on the employer, the individual with a disability should be given the option of paying that portion of the cost which would constitute an undue hardship or providing the accommodation.
The employer’s obligation under title I is to provide access for an individual applicant to participate in the job application process, and for an individual employee with a disability to perform the essential functions of his/her job, including access to a building, to the work site, to needed equipment, and to all facilities used by employees. For example, if an employee lounge is located in a place inaccessible to an employee using a wheelchair, the lounge might be modified or relocated, or comparable facilities might be provided in a location that would enable the individual to take a break with co-workers. The employer must provide such access unless it would cause an undue hardship.
Under title I, an employer s not required to make its existing facilities accessible until a particular applicant or employee with a particular disability needs an accommodation, and then the modifications should meet that individual’s work needs. However, employers should consider initiating changes that will provide general accessibility, particularly for job applicants, since it is likely that people with disabilities will be applying for jobs. The employer does not have to make changes to provide access in places or facilities that will not be used by that individual for employment-related activities or benefits.
No. An employer is not required to reallocate essential functions of a job as a reasonable accommodation.
Yes. Accommodations may be needed to assure that tests or examinations measure the actual ability of an individual to perform job functions rather than reflect limitations caused by the disability. Tests should be given to people who have sensory, speaking, or manual impairments in a format that does not require the use of the impaired skill, unless it is a job-related skill that the test is designed to measure.
An employer can hold employees with disabilities to the same standards of production/performance as other similarly situated employees without disabilities for performing essential job functions, with or without reasonable accommodation. An employer also can hold employees with disabilities to the same standards of production/performance as other employees regarding marginal functions unless the disability affects the person’s ability to perform those marginal functions. If the ability to perform marginal functions is affected by the disability, the employer must provide some type of reasonable accommodation such as job restructuring but may not exclude an individual with a disability who is satisfactorily performing a jobs essential functions.
An employer can establish attendance and leave policies that are uniformly applied to all employees, regardless of disability, but may not refuse leave needed by an employee with a disability if other employees get such leave. An employer also may be required to make adjustments in leave policy as a reasonable accommodation. The employer is not obligated to provide additional paid leave, but accommodations may include leave flexibility and unpaid leave.
A uniformly applied leave policy does not violate the ADA because it has a more severe effect on an individual because of his/her disability. However, if an individual with a disability requests a modification of such a policy as a reasonable accommodation, an employer may be required to provide it, unless it would impose an undue hardship.
Yes. The ADA permits employers to establish qualification standards that will exclude individuals who pose a direct threat — i.e., a significant risk of substantial harm — to the health or safety of the individual or of others, if that risk cannot be eliminated or reduced below the level of a “direct threat” by reasonable accommodation. However, an employer may not simply assume that a threat exists; the employer must establish through objective, medically supportable methods that there is significant risk that substantial harm could occur in the workplace. By requiring employers to make individualized judgments based on reliable medical or other objective evidence rather than on generalizations, ignorance, fear, patronizing attitudes, or stereotypes, the ADA recognizes the need to balance the interests of people with disabilities against the legitimate interests of employers in maintaining a safe workplace.
No. Individuals who currently engage in the illegal use of drugs are specifically excluded from the definition of a “qualified individual with a disability” protected by the ADA when the employer takes action on the basis of their drug use.
Yes. A test for the illegal use of drugs is not considered a medical examination under the ADA; therefore, employers may conduct such testing of applicants or employees and make employment decisions based on the results. The ADA does not encourage, prohibit, or authorize drug tests.
If the results of a drug test reveal the presence of a lawfully prescribed drug or other medical information, such information must be treated as a confidential medical record.
Yes. While a current illegal user of drugs is not protected by the ADA if an employer acts on the basis of such use, a person who currently uses alcohol is not automatically denied protection. An alcoholic is a person with a disability and is protected by the ADA if s/he is qualified to perform the essential functions of the job. An employer may be required to provide an accommodation to an alcoholic. However, an employer can discipline, discharge or deny employment to an alcoholic whose use of alcohol adversely affects job performance or conduct. An employer also may prohibit the use of alcohol in the workplace and can require that employees not be under the influence of alcohol.
The ADA prohibits discrimination based on relationship or association in order to protect individuals from actions based on unfounded assumptions that their relationship to a person with a disability would affect their job performance, and from actions caused by bias or misinformation concerning certain disabilities. For example, this provision would protect a person whose spouse has a disability from being denied employment because of an employer’s unfounded assumption that the applicant would use excessive leave to care for the spouse.
The fine line between disability discrimination and being passed over for a better suited applicant can be incredibly difficult and complex, but the Azadian Law Group, PC has the experience and knowledge necessary to pick out the differences and determine if you have a disability discrimination case.
Serving most of Southern California, if you believe that you have been a victim of disability discrimination, we want to hear from you. Please schedule your free consultation with us today by calling 626-449-4944 or 213-229-9031.