What are the 8 Main Disability Discrimination Questions?
California is an at-will employment state. As an at-will employee in
California, an individual may be terminated for any reason or no reason
at all unless terminated for an illegal reason. Per California
Government Code § 12940 an employer's decision to terminate an employee
may be characterized as illegal if the reason is based on an employee's
religion, race, color, national origin, gender, ancestry, age, military
or veteran status, sexual orientation, gender identity, and or
disability. Although this is not an exhaustive list, these are
considered as protected classes and if an employee belongs to one of
these classes and is terminated based on belonging to one of these
classes there are remedies available. Specifically, employees with a
disability, whether he or she is mentally or physically impaired are
protected. In order to make a claim, the employee would need to contact a
Disability Discrimination Attorney.
1- What constitutes a physical disability?
A physical disability includes a disease, disorder, condition,
cosmetic disfigurement, or anatomical loss or health impairment (§ 12926
(m)(1). The disability of this kind must also impact the employee both
in a body system and limit a major life activity. Affecting a body
system includes but is not limited to special sense organs,
neurological, musculoskeletal, reproductive, digestive, and respiratory.
The particular system affected would need to limit major life
activities socially, physically, mentally, or while working (§ 12926
(m)(1)(B)(iii).
2- Are mental disabilities recognized?
Mental disabilities that limit major life activities are considered
protected and include mental or psychological conditions, which range
from emotional or mental illness to specific learning disabilities (§
12926 (j)(1)). Mental disabilities that limit major life activities
includes the impairment hindering the efficiency and execution of
everyday physical, mental, and social functions (ibid). Further details can be provided by a Disability Discrimination Attorney.
3- How does an employee know if they are being discriminated against in the workplace based on their disability?
Discrimination within the workplace takes on various forms which may
foreshadow an unlawful termination. Forms of discrimination in the
workplace are demonstrated through name calling, singling an individual
out, passing an individual up for promotion or opportunities, demotion,
failing to accommodate a request for reasonable accommodation,
involuntary transfer or reassignment, bullying, constructive discharge,
and denying benefits. Although not an exhaustive list, discriminatory
behavior takes on various forms and is determined on a case by case
basis. For further enquirers regarding this type of situation, call a
Disability Discrimination Attorney.
4- What is expected of an employer?
Pursuant to the California Code of Regulations, title 2, section 11069,
the employer should endeavor to facilitate an interactive process
between themselves and the employee with a recognized disability. This
interactive process is built on open communication between the employer
and employee in order to maintain up to date knowledge of the
circumstances. By maintaining this interactive process, the employer is
on notice and subject to accountability for being aware of the
employee's needs for accommodation. In addition, this process promotes
the exchange of ideas to reach a set of reasonable accommodations that
are appropriate for the individual.
5- What kind of accommodation should an employer provide?
An employer should provide reasonable accommodation. Reasonable
accommodation provided to an employee entails adjustments and
modifications of the employee's position that enables the employee to
have an equal opportunity as their peers to carry out tasks. Some
circumstances may require the employer to suggest transferring the
employee to a more practicable position, ensuring the job-site
facilities are accessible to the employee, permitting a service animal
to accompany the employee at work, supplying the employee with a reader
or interpreter, providing a modified schedule as well as part-time work,
providing accommodation for training or tests or additional training,
and providing any other reasonable modifications to the employee's
work-site and or environment. For more clarification on what kind of
accommodation should be provided, ask a Disability Discrimination
Attorney.
6- What does it mean to be retaliated against?
Once an employee makes a complaint against their employer or against
any practice within the organization regarding their recognized
disability, the employee could be mistreated by means of retaliation.
This situation arises when the employee makes a complaint against
certain unlawful practices that violate FEHA regulations being conducted
within the workplace. In response to the complaint(s), the employer or
organization takes adverse employment action against the employee. For
example, an employee with a hearing impairment makes a formal complaint
to their human resources department regarding his or her supervisor
refusing to hire a sign language interpreter for a required training
seminar. Shortly after the complaint is made, the employee is demoted to
a lower paying position that does not require attending the training
session. Here, the organization's response to the complaint may be
characterized as discriminatory and retaliatory based on the employee's
protest against their supervisor's refusal to provide reasonable
accommodation.
Even if the employee's specific request for
accommodation is not granted, the employee is still under the protection
of FEHA in that they can both be discriminated or retaliated against
for making the request in the first place. Such circumstances need to be
evaluated by a Disability Discrimination Attorney.
7- What is considered unlawful employment practices?
If an employee falls under one of the recognized protected classes,
specifically in this case the employee possesses a physical or mental
disability, and an employer mistreats the employee based on having a
disability may be considered unlawful. The FEHA and California
Government Code § 12940(a) qualify unlawful treatment as being
demonstrated through hiring practices, path to promotion selection,
distribution of work benefits and privileges or compensation.
As
previously mentioned, an employer is required to provide reasonable
accommodation for an employee with a recognized disability. It is
considered unlawful under FEHA for an employer to refuse to implement
reasonable accommodation(s) requested by the employee as well as not
consider recommendations made by the employee's licensed physician.
Also, for further assistance on the matter, discuss the matter with a
local Disability Discrimination Attorney.
8- How to prove an employee has an action in disability discrimination against their employer?
There must be a direct link between the employee's disability and the
reason for termination. In other words, the employee must prove that
they were fired based on their recognized disability. For example, an
employee is diagnosed with a condition in which their vision is
significantly impaired and shortly after their employer is put on notice
of this, the employee is let go from their position "because they can't
see". This would demonstrate a causal link between the employee's
disability and the decision to terminate. Alternatively, the employee
may need to prove that the connection between the disability and the
termination was demonstrated through unequal treatment or failure to
make adjustments or modifications were necessary to do so.
If an employee wants to know if they have a case concerning these issues they need to reach out to a Disability Discrimination Attorney.