Disability Discrimination: What Is It?
If you are an employee in California, be thankful that your state has some of the toughest protections against disability discrimination in the country. Even so, disability discrimination affects thousands of California employees every year. A March 2015 report from the the California Department of Fair Employment and Housing (DFEH) shows that disability discrimination and retaliation were the most frequently reported kinds of workplace discrimination reported between 2011 and 2014.
While Federal Law Provides Protection, California Laws Are Stronger
While it’s true that federal law, through the Americans with Disabilities Act of 1990 (ADA), provides protections against disability discrimination, California law goes further. In enacting the Fair Employment and Housing Act (FEHA), the California Legislature made clear that California’s disability laws are separate from the ADA and that although the ADA provides a “floor” of protection, California law provides additional and separate protections. Cal. Govt. Code § 12926.1(a).
The most important of California’s laws protecting employees from disability discrimination is the FEHA, providing that:
It shall be an unlawful employment practice, unless based upon a bona fide occupational qualification . . . (a) For an employer, because of the . . . physical disability [or] mental disability . . . of any person, to . . . discriminate against the person in compensation or in terms, conditions, or privileges of employment.
Cal. Govt. Code § 12940.
Both Physical and Mental Disabilities Are Included
Under the FEHA, employers are prohibited from discriminating against an employee because of both physical and mental disabilities. Disabilities include (but are not limited to) conditions like work-related injuries, HIV/AIDS, hepatitis, epilepsy, seizure disorder, diabetes, clinical depression, bipolar disorder, multiple sclerosis, and heart disease.
To be considered a disability under California law, the condition must cause a “limitation” on a “major life activity.” Unlike federal law, California law does not require the limitation to be “substantial.” This difference is intended to result in broader coverage for California employees than the ADA provides under federal law. Cal. Govt. Code § 12926.1(c).
A physical or mental disorder or condition “limits a major life activity” and qualifies as a disability under California law if it makes physical, mental, and social activities, including working, more difficult. Cal. Govt. Code § 12926.
The Law Applies to Both Actual and Perceived Disabilities
The FEHA makes clear that that it protects employees from discrimination, regardless of whether the disability is real or the employer simply assumes it exists. In other words, if the employer only perceives that the employee has a disability, discrimination based on that perception is illegal, even if the employee isn’t actually disabled. Cal. Govt. Code § 12926.1(c).
What Actions Constitute Illegal Discrimination?
An employer is liable for disability discrimination when the discriminatory treatment affects the “terms, conditions, or privileges of employment.” These actions are called “adverse employment actions” and can include any action taken by an employer against an employee that substantially and materially affects the terms and conditions of the employee’s job. Akers v. County of San Diego (2002) 95 Cal.App.4th 1441, 1459.
Adverse employment actions include:
- Being laid off
- Transfer to a less favorable position
- Reduction in pay
- Reduction in benefits
- Failure to promote
The bottom line: Any action taken because of an actual or perceived physical or mental disability that adversely affects your employment in a material way is against the law.
Contact Our Orange County Office Today
If believe you are the victim of disability discrimination, you should consult an experienced employment lawyer. Give the Law Offices of Corbett H. Williams a call today at 949-679-9909 for a free consultation. Delay could cause loss of your claim. You can also contact us through the form below and we will respond promptly.