Disability discrimination occurs when an employer treats an employee or job applicant unfairly due to a disability which the employer believes may affect the employee’s ability to carry out their job responsibilities.
Federal law and state laws protect employees from this type of employment discrimination. The federal Americans with Disabilities Act (ADA) and California’s Fair Employment and Housing Act (FEHA) protect Americans and Californian workers from disability discrimination. The ADA prohibits discrimination against qualified workers with disabilities by employers with 15 or more employees. The FEHA specifically protects employees of companies which employ five or more people.
Employees are also protected from disability discrimination based on their relationship with a disabled person, for example if an employee’s spouse suffers from a disability.
What is a disability?
A disability is a physical or mental impairment which limits an otherwise qualified worker’s life activities and ability to perform tasks at work.
Not every person with a medical condition is protected by California labor law. To legally qualify as disabled, employee or job applicant must meet one of the following criteria:
- Have a physical or mental condition significantly limiting them from doing something, such as walking, talking, listening, seeing, or learning
- Have a history of a disability
- Be believed to have a physical or mental condition that is not transitory
For an employee to qualify as having a physical or mental disability, a doctor must say they do, and the condition must be known to impair or limit one’s ability to work. Once these criteria are met, and you have shared your diagnosis and limitations with your employer, you are protected against disability discrimination in the workplace.
What can I do if I feel my employment may be threatened by a disability?
The most important step for you to take is to give your employer written notice of your disability, in the form of a doctor’s note. Your employer should be notified, by a method they cannot deny receiving, that you have been diagnosed with a physical or mental condition that is considered a disability.
After that initial notification, you can later provide additional information that the employer will need to know, such as what your physical limitations are, how long the disability is expected to last, which types of accommodations you might need in order to carry out your job’s essential functions, and what types of duties you can no longer perform due to your mental or physical disability.
Your employer needs to be aware of these at the earliest possible opportunity, because if the employer suspects that you might be disabled, but has not been formally notified, they might invent a reason for termination which is unrelated to your disability. They could then try to deny any knowledge of your disability at the time they made the decision to change your employment status.
The interactive process
Once an employer is informed that an employee has a physical or mental disability, the employer must engage in an interactive process with that employee to determine whether, with or without reasonable accommodation, the employee can handle the essential functions of their position.
If the employee can still perform the essential functions of their job, but struggles with some non-essential functions, the law requires employers to get another employee to handle those tasks.
Employer must provide reasonable accommodation
The purpose of the interactive process is to determine whether, with a reasonable accommodation, an employee can continue performing the essential functions of their former position.
A reasonable accommodation is a change to the work environment, job, or any other aspects necessary for an employee with a disability to do their job. This may include making existing facilities more accessible. For example, lowering the height of a desk to accommodate a worker in a wheelchair, or providing voice-activated software to an employee who suffers from dyslexia or carpal tunnel syndrome.
Modifying work schedules is another type of reasonable accommodation. The most obvious might be time off in order to heal. Another would be light duty, which might mean switching to clerical responsibilities, or some other temporary position, while you are healing from whatever physical disability you might be suffering from.
There are some types of accommodations employees request that are not reasonable. For example, it is not reasonable to require the employer to assign the employee to a different supervisor. That is not considered a reasonable accommodation under the law.
Considerations include the cost to the employer to provide the accommodation, the type of burden it may place on the employer, and whether it is a permanent or temporary accommodation. The goal is to allow the employee to continue to work without creating an unreasonable burden or imposing undue hardship on the employer.
Ways for an employer to make reasonable accommodations may include:
- Medical leave
- Allowing work from home
- Modified equipment, software or devices
- Alternative schedules
- Rescheduling an available position
- Adjustment of workplace policies
- Additional training and benefits
- Interpretation assistance
- Accessible workspaces
Disability discrimination during the application process
Disability discrimination is prohibited during any stage or aspect of employment. This includes hiring, terminating, pay, assignments, promotions, layoffs, training, cut-offs, benefits, and any other aspect of any employee’s job.
Employers are prohibited from soliciting or receiving any medical certificates or information from job applicants with disabilities. Nor may they ask any questions related to the applicant’s medical history.
An employer may condition a job offer on the applicant’s answers to medical queries or may even require him/her to take a medical exam. However, this is only the case if all other new hires for the same job vacancy are also requested to provide the same medical information. The Disability Discrimination Act states that no potential employee should be singled out for any exams or questions just because he/she has a disability.
Upon hiring a person with a disability, an employer is only permitted to request medical details in order to provide the new employee reasonable accommodation for their disability.
Can an employer fire an employee after they know about a disability?
Employers are financially motivated to do what they can to rid themselves of disabled workers. Not every employee sues their employer when they are fired, and many employees believe the explanation provided by the employer is the actual reason for their termination.
The employer may invent performance issues and say that you are not doing your job well enough, or invent a customer complaint about you that may or may not be real. They may say your position has been eliminated and will not be replaced, but then, without you knowing, create a new position with a slightly different title which handles essentially the same duties.
The real reason, of course, is that you are disabled, and you needed accommodations that were either inconvenient or expensive for the employer to provide. This is called a pretext, which is a false reason for your termination. This is why it is critical for you to put your employer on notice of your disability before they fire you.
How do employers try to get away with firing disabled employees?
Employment law protects employees from disability discrimination, but it does not prevent companies from lying. Lying is not illegal. Employers often lie about the true reason they are firing a disabled employee. They will frequently come up with a false reason, whether it be position elimination, poor job performance, or downsizing.
Lately, there is a trend where the employer actually fires the disabled employee for failing to report a disability. The employee suffers from a disability, perhaps due to a physical injury, and doesn’t understand right away how serious it is. They first try to endure the pain, and once they finally report the condition, the employer fires the employee for failing to timely report an injury that they didn’t know was a disability.
An employment lawyer’s job is to gather facts through the discovery process to prove that the employer’s stated reason is false, and that the real reason is the employee’s disability. Often, employers do not want to spend money on accommodations, so they take a chance and lie.
Luckily, jurors like employees who want to do their job, despite physical or mental disabilities that impair or substantially limit their ability to do so. If you are willing to show up to the office and your employer denies you that opportunity, that makes for a compelling lawsuit.
What damages can I seek in a disability discrimination lawsuit?
There are three significant types of damages that employees suffer in a disability discrimination case. The most obvious loss is loss of wages. If an employer fires you because of your disability, you are not going to earn the money you would have earned. Those lost wages continue until you are able to find replacement employment, which might not have happened by the time of trial.
At trial, you would not only be entitled to all the past wages that your employer did not pay you, but also future lost wages. If you can show that there is no reasonable possibility of you being able to find a replacement position, you will be able to prove future lost wages up until the expected end of your career.
We might use an expert witness to explain to the jury how long that would be, or in court cases where an older employee is very close to the end of his or her career, it might be more cost effective to use a table.
In addition to lost wages, being fired because you are disabled causes emotional distress. Usually, the largest part of any verdict is the result of the emotional distress you suffer from being fired due to your disability.
That number is very dependent upon how it is explained, who your psychologists are, who your psychological expert at trial is, whether you’ve taken medication for depression or anxiety, how likeable the jury finds you, and how much the jury dislikes your former employer and its decision makers.
Another type of damage available to employees, in court cases where an officer, director, or managing agent of the corporation was involved in any way with the decision to terminate your employment, is punitive damages. To be eligible for punitive damages we have to show that your former employer engaged malicious, oppressive of fraudulent conduct.
Punitive damages are to punish the employer for engaging in illegal conduct. Punitive damages can be significant because they are based on the net worth of the company. As a result, it is always hotly contested who at the company approved or ratified the termination decision, and whether or not the company’s actions were tantamount to malice, oppression or fraud.
We are able to bring these kinds of cases, and not ask the employee for any money up front, because the statute that protects against disability discrimination also provides for attorney’s fees to the employee, if they win. That same statute does not require the employee to pay attorney‘s fees if they lose. It’s a one-way attorney’s fees shifting statute, which is of course very beneficial to the employee.
As long as the case is not deemed to be frivolous, there is no risk to the employee. For the purposes of statute, frivolous means “entirely made up.” If your case is a legitimate case but the jury just thinks something else was the reason for your termination, you still do not owe your former employer any attorney fees.
What if my employer refuses to grant time off for dialysis due to diabetes?
Unfortunately, diabetes is a disability growing at an astounding rate in the United States. Many employers find that their diabetic employees are gone two or three days a week, for hours at a time, to attend dialysis treatments.
For employers, this is a very expensive problem, because although they are legally required to continue to accommodate employees who need this type of accommodation, they don’t want to. An employer in that predicament will often try to find an excuse to fire a diabetic employee.
The good news for employees who suffer from diabetes is this: your job is protected from this kind of employer, and juries are very generous to such an employee, because the employee is able and wants to work, but just needs medical treatment.
Juries want to punish an employer who wants to prevent that from happening simply because it hurts their bottom line to allow the accommodation.
It is illegal for an employer to fire someone who needs time off for dialysis. That kind of conduct by an employer will be severely punished by a jury. The best thing you can do is give your employer timely notice of your diabetes and need for dialysis, with a doctor’s note, at the earliest possible opportunity.
What if my employer refuses to give me time off for chemotherapy?
Employees who are cancer patients inspire compassion in juries. Jurors will most often severely punish an employer who retaliates against a cancer patient for taking time off for chemotherapy. While it may be cost-effective for an employer to use an excuse to fire a cancer patient, the jury will award a large amount of money once that claim is proven, with the goal of preventing employers from engaging in that kind of conduct ever again.
Not only does the employee need chemotherapy to save their life, but oftentimes, it’s their employer-funded health insurance which enables the patient to receive that lifesaving treatment. To fire a cancer patient who is in need of their employer-paid health insurance often increases the damages tenfold or more.
The employee needs to provide the employer with notice that they been diagnosed with cancer and that they need chemotherapy or other treatments to save their life. That notice should be in writing, and it should be accompanied by a doctor’s note. Once the employer has been notified, it would be flatly illegal for them to fire that employee. Some heartless employers will still find an excuse to do so.
A jury will see through this pretext (excuse) and understand that the employer’s real motivation was to get rid of an employee who had to be gone multiple times each week for chemotherapy, and came back a shell of themselves due to the side effects of their treatment.
Furthermore, chemotherapy and/or radiation therapy is a temporary disability, and the employee should be allowed to return to work following the completion of their treatment. In this latter case, the accommodation required would be time off to recover or heal.
Chemotherapy and/or radiation therapy can be debilitating, and the employee is often nauseous, weak, and not mentally acute. Employers need to accommodate employees undergoing cancer treatment, providing reasonable accommodations which allow the employee to work during or after receiving cancer treatments.
In the case that an employee is temporarily unable to work, time off without pay is an option. If, however, the cancer patient employee is fired, that employee has a very strong lawsuit in the making. This is a form of disability discrimination retaliation.
Can I sue for disability discrimination if I am in a union?
In California, the Fair Employment and Housing Act (FEHA) supersedes any union collective bargaining agreement. You can sue regardless of whether you have a union membership and regardless of whether the union has a mandatory grievance process.
The first thing you need to do is contact an employment attorney to guide you through the process. Sometimes, your union representative won’t explain this, and will steer you toward the grievance process.
If the arbitration of your grievance reaches its conclusion, you run the risk of losing the opportunity to sue for disability discrimination. Thus, it is essential to contact an employment attorney before this occurs.
Once you’ve been fired, or suffered an adverse employment action, you must file a claim with the Department of Fair Employment and Housing (DFEH) within three years.
It’s important that the employer know about your disability before they take any negative or punitive employment action against you. Contact an employment attorney right away and give the employer documentation of your disability as soon as possible, preferably prior to your termination.
A union’s collective bargaining agreement (CBA) is different from an arbitration agreement. Your employment may be covered by both of these types of agreements.
Effective in January 2020, the statute of limitations for FEHA discrimination, harassment and retaliation claims is three years.
We represent employees.
If you believe that you are are facing any of the above mentioned issues in your workplace or during the hiring process, or if you have been discriminated against because of your disability, you should talk to an experienced disability discrimination lawyer immediately. Legal advice from a qualified professional can make all the difference in your case.
To protect your right to sue, you are requested to file a charge of discrimination with a government agency as soon as possible. A disability discrimination attorney will help you decide whether your case is worth pursuing or not, try to negotiate with your employer to come to a mutual agreement, or settlement to protect your rights against disability discrimination in the workplace.
At Wrongful Termination Law Group, our attorneys are renowned for successfully representing clients who have fallen victims of disability discrimination in the workplace. We are respected for our honest representation of our clients with concrete disability discrimination claims.
During your consultation, our disability discrimination lawyers will help answer your questions, explain the California labor laws regarding disability discrimination, and discuss the several legal options available to effectively settle your case.
We will develop a legal strategy tailored to suit your exact needs and will achieve the best possible result for you. At Wrongful Termination Law Group, we handle all of our clients cases in a professional manner on a contingency basis, meaning that you do not need to pay any disability discrimination attorney’s fees unless we win your case.