Disability Discrimination and Failure to Accommodate
If you have experienced discrimination or harassment due to a disability, contact San Jose disability harassment attorney Kael Briski today for a free consultation.
Today, nearly, 10 percent of the world’s population lives with a disability, making this the world’s largest minority group. In the United States, about 74.6 million people have some type of disability, yet only about 17.6 percent of those with a disability were employed in the U.S. in 2013. About a third of employers surveyed said those with disabilities cannot effectively perform the required job duties. Other employers said they did not hire those with disabilities out of a fear of costly accommodations.
Every employer in the state of California, and across the nation, has a responsibility to protect its employees from disability discrimination, retaliation and harassment. Further, they are required to provide a “reasonable accommodation” for an employee disability. Employees in the United States who have an injury or condition, which affects one or more major life activities, are members of a protected class under The Fair Employment and Housing Act (FEHA), and the Americans with Disabilities Act (ADA). In general California has strong protections against treating disabled persons differently. To qualify for protection under the laws of the State of California’s FEHA, a disability need only “limit” a major life activity, whereas under Federal law it must involve a “substantial limitation.”
Disabled persons are required under FEHA to be treated in specific, defined ways. Significant employer liability can result for those employers who fail to follow FEHA rules.
In addition to FEHA and ADA obligations, employers in the state of California have specific obligations under the Family Medical Leave Act, the California Family Rights Act and Workers’ Compensation laws. The provisions set forth in FEHA apply to most all California employers with five or more employees, and is more fully described under California Government Code 12940(a)-(n).
Categories of Disability Discrimination
Under both the FEHA and the ADA, there are two major categories of disability discrimination:
- Failure to accommodate an employee with a disability, and
- Denial of job benefits due to a disability.
The Most Common Types of Disability Discrimination Violations
Failure to accommodate is the most common type of disability discrimination claim. When an employee relates a disability which requires accommodation to his or her employer, the employer is required to take necessary steps to accommodate that disability. If the employer suspects a disability, or is told of the disability by a third party, the employer also has a duty to accommodate the disability.
Employers must interactively engage in a conversation with employees who have a disability or whom the employer believes have a disability, in an effort to accommodate the disability. This means the employer is not allowed to simply say, “I’m sorry, but that accommodation will cost too much.” The employer must, at a minimum, investigate all avenues for accommodation. Below are other common violations of disability discrimination laws:
- Claiming no “light duty” work. When an employee suffers an injury or condition which results in physical restrictions, the employee’s physician may release the employee to “light duty work” only. The employer may counter the doctor’s orders by claiming there is no light duty work available, preventing the employee from returning to work until there are no restrictions in place.
FEHA law requires that employers:
- Make a good faith effort to review the specific restrictions;
- Understand those restrictions;
- Compare the restrictions to the employee’s current job or other available jobs, and
- Accommodate those restrictions.
The accommodation must be determined after a detailed analysis of cost, and must not constitute an “undue hardship” for the employer.
- Having a “no restrictions” policy in place. A no restrictions policy means the employer refuses to take an employee back until the employee has a form from the doctor which states there are no restrictions on the employee’s ability to perform their normal, daily tasks. These no restrictions policies violate employee rights under the FEHA, if such restrictions could, conceivably, be undertaken with no significant hardship on the employer.
- Presenting employees with a termination deadline. Some employers give their employees a deadline by which the employee must return to work, otherwise they will be terminated. In this scenario, the employee has a policy in place, which limits the time of a disability leave. If that time is exceeded, the employee will be terminated. These policies violate FEHA for those employees who may need additional unpaid leave to allow their body to finish healing, if such unpaid leave would not place an undue burden on the employer.
- Withdrawal of accommodations which have already been proven to work. This can occur when the employer begins by doing the right thing in accommodating an employee’s restrictions based on a doctor’s return-to-work form. The employer may then receive notice that the employee’s condition is permanent and stationary. At this time, even though accommodations for the employee were provided, the employer may withdraw those accommodations when faced with permanent restrictions. In most cases, withdrawal of accommodations is an FEHA violation.
- Using job descriptions inappropriately to deny accommodation. Many employers use job descriptions created for individual positions to prevent an employee from returning to work. As an example, the employee’s job description may state the employee must lift thirty pounds “rarely.” If the doctor’s note states the employee cannot lift anything over fifteen pounds, an employer may use this statement to show the employee can no longer perform his or her stated job duties.
Often, however, job descriptions may state requirements which are not actually a necessary aspect of the employee’s job—in other words, the employee has yet to lift something weighing thirty pounds in his or her current job. Employers may not use inaccurate job descriptions to deny an employee the right to return to work, or a violation of FEHA has been committed. The employer in the above scenario must accommodate the employee by modifying the job description so that it more accurately reflects the employee’s actual job duties.
- Claiming undue hardship without a comprehensive analysis. Employers are required to comprehensively analyze the situation prior to claiming undue hardship. Inconvenience, difficulty or cost do not, on their own, support the undue hardship claim. Undue hardship may only be claimed following a fact-specific analysis with a clear conclusion that a particular accommodation would require significant expense or significant difficulty. Such accommodations as allowing an employee to telecommute, transferring an employee to a vacant position, providing workspace modifications or tools, or providing physical assistance to an employee are generally considered reasonable accommodations. If an employer claims undue hardship without a thorough analysis of the request, the employer may have violated FEHA.
- Failure to interactively work with an employee to accommodate a disability. Far too many employers turn a blind eye to the statutory requirement to interactively work with an employee with work restrictions. Employers are required to engage in a “timely, good faith interactive process.” Even in cases where the employee does not specifically request accommodations, rather presents the employer with a list of restrictions, the employer is required to engage interactively with the employee to accommodate those restrictions. Failure to do so is a violation of FEHA.
California’s Fair Employment and Housing Regulations
In 2013, regulations proposed by California’s Fair Employment and Housing Commission, which governed disability discrimination, were put into effect, requiring that the definition of “disability” be construed as broadly as allowed under FEHA. These regulations also stated the primary focus on cases of violations of disability discrimination laws should be whether reasonable accommodations have been provided and whether both employer and employee have properly met their obligation to engage in the “interactive process.”
While most of the regulatory amendments expanded the rights of disabled employees, one in particular did not. The regulations cited the California Supreme Court’s decision in Green v. State of California established that an applicant or employee has the burden of proof in showing he or she is capable of performing essential functions of the job in question, with or without a reasonable accommodation. This means the applicant or employee must clearly show he or she is an “otherwise qualified individual with a disability.”
Statutes of Limitations for Disability Discrimination
Under California’s Fair Employment and Housing Act, discrimination claims must be filed within the Department of Fair Employment and Housing within one year from the date of the discrimination. Once a Right to Sue Notice is issued, you only have one year to file a case in court. An experienced California disability discrimination attorney can help ensure your rights and your future are protected.
Contact San Jose Disability Harassment Attorney Kael Briski Today
If you are an employee with a disability in the state of California who believes you have suffered disability discrimination in the workplace, or if you have requested an accommodation and your employer is refusing your request, it is crucial you speak to a knowledgeable disability discrimination attorney as soon as possible. Your lawyer will need to investigate all aspects of your case to determine if your employer engaged in illegal discrimination against you because of your disability. This may involve interviewing witnesses and co-workers, as well as reviewing important work policies and documents.
We have significant experience representing disabled employees and will work to ensure that your rights are protected.