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Disability Discrimination

Disability Discrimination

  • 2005 case makes it easier to prove disability discrimination in CA: Green v. State of California (2005) 32 Cal.App.4th 97.
  • The holding: The jury found that, in failing to provide plaintiff with reasonable accommodation for his Hepatitis C, defendant discriminated against plaintiff in violation of the Fair Employment and Housing Act (the FEHA). (Gov. Code, § 12900 et seq.)
  • The verdict: The jury awarded plaintiff $597,088 in economic damages and $2,000,000 in non-economic damages, which the court reduced to $1,800,000.
  • The issue: What is a disabled person's burden of proof in a case for failure to accommodate a disability at work?
  • The Law: the plaintiff must prove:
    • that he or she has a condition limiting one or more "major life functions" (such as working);
    • that he or she suffered an "adverse employment action" (such as demotion, transfer, layoff, firing);
    • that the employer acted to harm the plaintiff because it did not want to accept the work restrictions imposed.
  • The change in the Law: The burden is no longer on the employee to prove that he was qualified to perform the essential duties of the the job. Instead, the burden is on the employer to prove that the employee was incapable of performing such duties with reasonable accommodation.

What You Can Do

If you have a physical or mental condition that impairs your ability to work, you can:

  • evaluate with your doctor just your limitations should be in view of the daily regular work activities you perform.
  • Let your doctor know clearly the purpose for seeking his or her report to the employer, that is, to obtain accommodation.
  • Inform your doctor what your actual routine job duties are, and identify which of those are "essential" to the job.
  • Ask your doctor to use medical discretion in setting the limitations: extreme restrictions will eliminate the possibility of accomodation.
  • Think now about the kinds of "reasonable accommodations" you may need to perform the "essential functions" of your job:
    • You may need work station adjustments and special equipment;
    • You may need occasional co-employee assistance to lift over a certain weight limitation;
    • You may need rest breaks more frequently to streach or administer medication;
    • You may need a different shift, or an adjustment of hours within your current shift:
    • You may need to fill an available vacancy or opportunity in another department presenting fewer physical or mental stresses;
    • You may need more time off from work to attend regularly scheduled therapy or other treatment sessions.
  • Submit your request for accommodation in writing, supported by your physicians written recommendations.

Conclusion

  • Insist on being taken seriously when you requesting accommodations: the employer has a statutory duty to engage in a good faith, "interactive process" to get the necessary information, and then a further affirmative duty to actively provide accommodation on your behalf. Only if the employer can show your need for accomodation presents an "undue hardship" is it relieved of the duty to act promptly to accommodate your need. If the employer fails to act, then the Green v. State of California case cited above is available.

Employee Rights Attorney Frank Pray

5160 Campus Drive

Newport Beach CA 92660

949.251.1006

877.job.atty


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