How the Law has Addressed Disability Discrimination

Confronting Disiblity Discrimination in the Workplace

For people with physical and mental disabilities, the road on which laws have traveled regarding the treatment of persons with disabilities has been a long and rocky one over the last century. Shamefully, at one time, both state and federal laws gave little consideration to the challenges and needs of individuals living with disabilities, and in many cases, the laws that did exist were outright hostile. Thankfully, those uncharitable notions have now nearly universally been replaced by more compassionate laws that protect the rights and dignity of those with disabilities.

Notwithstanding these changes in the law, disabled individuals still face significant challenges in overcoming not only prejudice, but, oftentimes, ignorance, as people unfamiliar with a given condition of disability may not understand what that disability entails, and how a particular condition may be accommodated so that the needs of these disabled individuals can be met in a variety of contexts.

Today, there are no less than ten different federal laws that protect things such as access, utility, and the rights of disabled individuals regarding everything from telecommunications to architectural requirements to air travel to employment and housing. And for residents of Los Angeles and elsewhere in California, in addition to the Unruh Civil Rights Act and the Fair Employment and Housing Act (FEHA), there are additionally various civil code sections that address the rights of the disabled regarding access to public places, building standards and conditions which outside organizations must meet for accommodating the disabled in regard to obtaining state government grants and contracts.

Overall, while it may be impossible to overcome all the prejudices and difficulties that disabled individuals face in society, the law has finally accorded the plight of the disabled much-needed recognition, so that today, the disabled can carry out their lives not only more productively and confidently, but with the full dignity, they deserve.

If you are a disabled individual and you encounter discrimination or harassment at your place of employment regarding your disabling condition, a Los Angeles County disability discrimination attorney can help you become aware of the rights and protections to which you are entitled by law, so that you can work to vindicate your rights and the rights of other similarly situated individuals.

Confronting Disability Discrimination or Harassment in the Workplace

The two most critical laws regarding disability in the context of employment for Californians are the Title I of the federal Americans with Disabilities Act (ADA) and the FEHA. Although these laws have some similarities, they also have important distinctions that may make one or another of these laws to apply or not apply, depending upon the situation. For example, under the ADA, only employers with 15 or more employees are bound by its terms. In contrast, under the FEHA, an employer need only have five employees or, in the case of harassment, the employer needs to only employ one or more persons. These and other provisions of these laws can cause confusion about when these laws may afford disabled individuals with enforceable rights. Below are brief summaries of some important portions of these laws.

Key Provisions of the ADA

Like nearly every federal civil rights law governing employment relationships, the provisions of the ADA can be very difficult to understand. This is a result of legislators trying to craft a law that is comprehensive in terms of covering many different disabilities and circumstances, but at the same time trying to delineate its scope with sufficient definiteness so that employers can discern what is required of them, and so that disabled applicants and employees can understand what their rights are. As is common in such situations, both employers and employees generally must, in most cases, rely upon a knowledgeable and experienced attorney to decipher the law’s requirements. The ADA is no different. Indeed, the United States Supreme Court has itself grappled with various provisions of the ADA as parties have tried to determine Congress’ intent.

One particularly important area is understanding exactly what a “disability” is. Under the ADA, an individual is considered to have a disability if they have a “physical or mental impairment that substantially limits one or more major life activities; a record of such an impairment; or is regarded as having such an impairment.” A major life activity is described by the act as including:

• Caring for oneself
• Performing manual tasks
• Seeing
• Hearing
• Eating
• Sleeping
• Walking
• Standing
• Lifting
• Bending
• Speaking
• Breathing
• Learning
• Reading
• Concentrating
• Thinking
• Communicating
• Working

In addition, a major life activity may also include the operation of major bodily functions, such as the immune, digestive, neurological, respiratory, circulatory, endocrine, or reproductive systems.

As can be seen from this extensive list, the ADA is intended to be broadly comprehensive; however, it does not include impairments that are of short duration or minor impacts, such as a sprained ankle or a case of pneumonia. In addition, it also protects those for whom an impairment is not an actual physical handicap, but a perceived handicap. Such a case may encompass, for example, an individual who is disfigured but fully physically capable, but where an employer might perceive that they are unable to perform a job due to the impaired condition. The ADA recognizes that raw prejudice can sometimes prompt an employer to discriminate even when an individual is fully capable (that is, needs no special accommodation) of performing a given job.

As a general rule, the ADA prohibits employers from discriminating against the disabled in all employment practices, including:

• Application procedures
• Hiring
• Termination
• Promotion
• Compensation
• Training
• Any other terms, conditions, and privileges of employment

The ADA’s provisions apply recruiting, advertising, granting tenure, lay-off and leave policies, fringe benefits and any other employment-related activity.

Since disabled individuals often have special requirements related to their disability, the ADA requires that employers provide a “reasonable accommodation” for the disabled individual that will enable that individual to perform the job. This term is very broad and can encompass everything from modifying a work schedule to acquiring special equipment to transferring the disabled employee to a different position. The basic requirement is that the employer must take reasonable steps to help a disabled individual to achieve the same level of performance and to enjoy the same benefits as a similarly situated individual who does not have a disability.

In addition to these provisions, however, the Act does have important limitations, including holding that employers need not hire disabled individuals who are unable to perform the essential functions of a job even with reasonable accommodation, and also holding that the ADA does not require employers to hire and accommodate disabled individuals when doing so will present an “undue hardship” to the employer. In sum, whether the ADA will provide a remedy for a disabled individual will depend greatly upon the particular facts presented in a given case.

Key Provisions of California’s FEHA

As stated above, the main California law that protects the rights of the disabled with respect to employment is California’s Fair Employment and Housing Act, referred to commonly as FEHA. Very similar in spirit to the ADA, the basic provisions of the FEHA are fairly straightforward:

It is an unlawful employment practice, unless based upon a bona fide occupational qualification, or, except where based upon applicable security regulations established by the United States or the state of California:

a) For an employer, because of the […] physical disability, mental disability, medical condition, genetic information, […] of any person, to refuse to hire or employ the person or to refuse to select the person for a training program leading to employment, or to bar or to discharge the person from employment or from a training program leading to employment or to discriminate against the person in compensation or in terms, conditions or privileges of employment.

Again, like the ADA, the law has many technicalities, such as allowing an employer to discriminate where putting a disabled individual in a given position will present a risk of harm to the safety and health of that individual or to others, and recognizing that, for certain positions, physical or mental capability may constitute a “bona fide occupational qualification” that might bar a particular disabled individual from being suitable for performing a given job, even with reasonable accommodation.

In addition to discrimination, the FEHA also prohibits workplace harassment against any individual on account of his or her disability. Many harassment policies are aimed at requiring employers to redress instances where an employer or customer may exhibit hostility or offensive behavior to a disabled individual in order to prevent a hostile atmosphere. The FEHA goes further and even provides that an employee may be held personally liable for harassment, even where the employer has responded appropriately or even where the employer is not even aware of the harassment.

In general, the FEHA provides a broader array of protections to the disabled than the ADA, and there are important distinctions in how the different laws apply. When and how the FEHA or the ADA may apply in your particular situation depends upon the specific facts of your situation.

When Should You Contact an Attorney for Disability Discrimination or Harassment?

As you can see from the information outlined above, the various laws regarding disability discrimination can be very complex, and there may be instances where federal- and state-law rights overlap. For example, both the federal Family Medical Leave Act (FMLA) and California Family Right Act (CFRA) allow for employees to take an extended period of unpaid leave on account of a serious health condition without jeopardizing their job, so long as they meet certain eligibility criteria. In addition, there may be other federal and state laws that apply in a given situation, particularly where discrimination based on a disability is coupled with other types of discrimination, such as discrimination based on race, religion or sex.

Given the many laws, as well as the complexity and technicalities contained in these laws, if you encounter discrimination or harassment based on your disability, it is essential that you obtain qualified legal advice and assistance in understanding what your rights are, and what provisions of law may apply in your specific circumstances.

The Los Angeles disability discrimination attorneys at The Nourmand Law Firm, APC, have many years of experience handling disability discrimination and harassment cases and are familiar not only with these laws but with recent cases that may affect the viability of specific claims and remedies. If you need help with disability discrimination or harassment case, call The Nourmand Law Firm, APC, for a free, no-obligation initial consultation. We will listen to your story, and ask essential questions so that we can fully and thoroughly evaluate the merits of your potential case. As always, if we offer to take your case, you will pay no upfront legal fees. We do not take a fee unless and until we recover damages on your behalf.

If you believe you may have a disability discrimination or harassment case, contact The Nourmand Law Firm, APC, for your free consultation today.