Disability Discrimination

DISABILITY DISCRIMINATION

The coverage provided to disabled workers by the FEHA is broader than that provided by the federal Americans with Disabilities Act (ADA), even after the amendment of the federal statute. Employees and applicants with physical or mental disabilities are entitled to reasonable accommodations to perform the essential functions of the job they seek or hold. Employers must engage in a timely, good-faith interactive process in response to a request for reasonable accommodation, and the failure to do so is an independent violation of the FEHA. Government Code §12940(n).

The FEHA defines a disabled person to include a person with a “limitation” upon a major life activity, as opposed to federal law which requires a “substantial limitation” on a major life activity. Whether a disability “limits” a major life activity is determined without regard to mitigating measures, such as medications, assistive devices, or reasonable accommodations, unless the mitigating measure itself limits a major life activity. Government Code §12926.1(c).

For example, an employee or applicant with bad eyesight that can be corrected to 20/20 with glasses would be considered “limited” in the major life activity of seeing. Employees with chronic conditions such as HIV/AIDS, hepatitis, epilepsy, seizure disorders, diabetes, clinical depression, bipolar disorder, multiple sclerosis, or heart disease may be considered disabled under the FEHA.

“Major life activities” are broadly defined under the FEHA to include “physical, mental, and social activities, and working.” Government Code §§12926(i),(k). Working is considered a “major life activity” under the FEHA whether the disabled employee is precluded from holding a particular job or a broad range of jobs. Thus, an individual who is prevented from performing a single job may qualify as disabled.

A disabled employee or applicant must be able to perform the essential functions of the job in question in order to qualify for protection. Government Code §§12940(a)(1) and (2). Also, as under the ADA, California law provides that written job descriptions, the amount of time spent on the function, and the employer’s judgment as to which functions are essential can be considered in determining whether particular job functions are essential. Government Code §12926(f)(2).

Other such factors include whether the reason for the position is to perform the job function, the number of employees available to perform the function, and whether the function requires specialized expertise. Government Code §12926(f)(1). Employers must provide reasonable accommodations to assist a disabled applicant or employee in performing the essential functions of the job, unless doing so would cause an undue hardship. Government Code §12940(m). The elimination of essential job functions is not a reasonable accommodation.