Disability Discrimination



What constitutes disability discrimination?



Disability discrimination occurs when an employee or applicant is treated unfavorably because of a disability. Unlike most other employment laws, disability discrimination statutes require that an employer take affirmative steps when dealing with disabled employees. The law requires that employers make reasonable accommodations for disabled employees and applicants, so long as the accommodations are not significantly difficult or expensive. An employer is also required to engage in an "interactive process" upon learning that an employee has a disability in order to determine what reasonable accommodations an employee may need.

What are some examples of disability discrimination?



Disability discrimination cases most commonly involve a failure to engage in the interactive process or to provide a reasonable accommodation for a disabled employee. Below are some common examples of discrimination from prior cases: 
 

Accommodations:

  » Female forklift driver has Crohn's disease and needs to use the restroom frequently during the course of the workday. The only female bathroom near her work location is locked and only accessible by getting a key from the supervisor's office. Employee requests a reasonable accommodation by asking for her own personal bathroom key so that she can access the bathroom quickly in emergencies. The employer denies the request, claiming that only the supervisor may have a key. Since it would not have been an undue burden for the employer to have provided the accommodation, the employee has been discriminated against.   » Secretary in consulting firm suffers a back injury while playing soccer on the weekend. She is able to perform all of the essential functions of her position but she requests a more comfortable high-back chair in order to better accommodate her back injury while it heals. The employer rejects the request even though purchasing the chair would not be costly.  
             
 

Company Wide:

  » Clothing factory instituted a blanket policy in 1985 prohibiting employment by any individual with HIV/AIDS. The policy has never been revoked and is still implemented. A employee acquires HIV and he is terminated after the employer finds out.   » A company is concerned about its rising healthcare costs and starts an informal company-wide policy of targeting disabled employees with stricter work expectations and poor performance reviews and eventually termination.  
             
 

Terms and Conditions:

  » Factory worker suffers an accident on the job that injures his hand. He requests to be put in a desk position for one month while his hand heals. Because it is a busy time of year, the employer's supervisor does not even engage in the interactive process and instead ignores his injury even though in the past he has temporarily transferred employees to desk duty.   »  Employee who must use a talking device to type on his computer because he has arthritis is denied the same end of the year bonus given to all other employees. Her employer claims it is because the employee did not perform as well as others, but many of the other employees who received the bonus had lower performance than the disabled employee.  
             
 

Hiring/Promotions

  » An individual applies for a position and is given a job offer. Before her start date, the employer learns that the individual had cancer three years ago and that the cancer is now in remission. The employer terminates the individual's job offer because it is concerned that company health insurance costs would rise if the individual's cancer comes back.   » A job applicant to a lawyer position cannot walk and uses a wheelchair. Before his interview, he asks human resources if he can be reasonably accommodated during his interview by having all his interviews conducted in a conference room instead of having to walk to different interviewer's offices. The law firm declines his request for a reasonable accommodation even though it did not present an undue burden.  
             
 

Termination:

  » Long term employee of restaurant has a seizure at work. Before the employee even returns to work, the employer fires her, claiming that the employee is not healthy enough to work despite the fact that the employer has not even tried to engage in the interactive process with the employee.   » Employee suffers a leg injury and is using a wheelchair. He requests an accommodation by asking his employer to let him teleconference with clients for one month while he is recovering instead of visiting the clients personally. Even though the employer lets other employee's teleconference, he denies the request and fires the employee.  

Should I file my complaint under state or federal law?



Disability discrimination is outlawed under both California law and federal law. However, state law is more pro-employee in many ways, including the following:

•  The state definition of disability is much broader than the definition under federal law.
•  Employers are strictly liable for discrimination by a supervisor whereas under federal law employers have a possible defense.
•  Proving that the perpetrator of the discriminatory conduct falls within the definition of a supervisor is easier under state law.
•  There is no cap on punitive or compensatory damages whereas under federal law there is a $300,000 limit for large employers.

These types of differences can make a major difference in the value of your case and so it is usually advantageous for an employee to file their disability discrimination claim under state law.

How long do I have to file my disability discrimination claim?



Two time limits apply for filing disability discrimination claims under California law. First, you must request a right to sue notice from the California Department of Fair Employment and Housing within one year of an adverse employment action. Secondly, you must file your lawsuit in state court within one year of obtaining the right to sue notice.

For instance, if you are terminated from employment on June 1, 2013 and obtain a right to sue notice on September 15, 2013 you would then have one year (until September 15, 2014) to file your discrimination lawsuit in state court.

How can an attorney help you?



Disability discrimination is one of the most complex areas of equal opportunity law because cases can be highly subjective and unique. An experienced disability discrimination lawyer can highlight an employer's failure to engage in the interactive process and/or provide a reasonable accommodation to a disabled employee. 

Our firm is well-versed in disability discrimination cases. We will diligently analyze the pertinent facts to demonstrate that an employer failed to abide by its affirmative obligation to engage in the interactive process and/or provide an appropriate reasonable accommodation. Our firm can advise clients on their alternatives, prepare a complaint if necessary and litigate a disability discrimination case until resolution.

Remember: no recovery, no fees. We offer free confidential consultations and we only get paid if we obtain a positive recovery in your case.
Socal Employment Counsel - Representing Employees in Workplace Disputes Throughout Northern California
We can review the facts of your case and give you an honest evaluation of any disability discrimination issue you are facing. 

Toll-Free:
888.200.9402

Online: Case Evaluation Form

• Email: 
info@socalemploymentcounsel.com
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