California employees are protected under federal and state law from workplace discrimination based on disability or a perceived disability by their employer. For disability discrimination Santa Rosa employees need to understand their rights.
The ADA applies to any employer of 15 or more employees. Not to be outdone by federal law, California’s FEHA applies to employers with just five (5) or more employees.
An employee that is protected from disability discrimination is referred to as a “qualified individual”. A “qualified individual” is someone who, with or without reasonable accommodation, is qualified in terms of skill, experience, and education, and can perform the essential functions of their job or the job he or she is applying for. If the person cannot perform the essential function of the job, even without a reasonable accommodation, then the employee is not a “qualified individual” and can be terminated or denied a job.
A disability is defined as a documented physical or mental impairment that substantially limits one or more of the individual’s major life activities or someone that is regarded as having such an impairment. A physical impairment is any physiological disorder or condition, cosmetic disfigurement; or anatomical loss affecting one or more systems of the body. A mental disorder is any mental or psychological disorder, such as intellectual disability (formerly called mental retardation), organic brain syndrome, emotional or mental illness, or a specific learning disability. So, the definition of a disability is pretty broad.
Examples of recognized or qualified impairments is, as follows:
- Cerebral palsy;
- Muscular dystrophy;
- Major depressive disorder, bipolar disorder, post-traumatic stress disorder, obsessive compulsive disorder, and schizophrenia.
A person can be considered disabled and protected from disability discrimination, if he or she is regarded as having a physical or mental impairment. The reasoning behind this is that unfounded concerns, mistaken beliefs, fear and myths, or prejudice about disabilities are often as disabling as actual impairments.
What Constitutes Disability Discrimination? It is illegal for an employer to do any of the following:
- Segregating or adversely classifying disabled employees or applicants because of his or her disability;
- Participating in a relationship with a third party that adversely affects its disabled workers, such as a relationship with an employment agency or labor union;
- Using discriminatory administrative standards, criteria, or methods that have the effect of discriminating against disabled workers;
- Denying equal jobs or benefits;
- Failing to make reasonable accommodations;
- Using discriminatory qualification standards to screen out individuals or groups with disabilities, unless such standards or tests are job-related to the position;
- Failing to properly administer employment tests to an employee or applicant that has a disability that impairs sensory, manual, or speaking skills such that affect the person’s test results and does not reflect his or her true ability;
- Conducting pre-employment inquiry or medical examinations—An employer may not make any inquiries of a job applicant as to whether he or she has a disability or as to the nature or severity of a disability or conduct a pre-employment medical examination. A medical examination is permissible after the offer has been made if all employees are subject to the examination and the information collected is kept separate and confidential; or
- Conducting medical examination following employment—Following employment, medical examination and inquiries are permissible only if they are job-related and consistent with business necessity. Voluntary medical examination and history taking is permissible, if part of the employee health program available to the employee. In addition, an employer may make inquiries into the ability of an employee to perform job-related functions.
How Can An Employee Prove Disability Discrimination?
To prove disability discrimination, the employee has to prove that:
- He or she is disabled under the law, or is mistakenly regarded as disabled;
- Is a “qualified individual”—Is able to perform the essential functions of the job, with or without reasonable accommodations; and
- Was denied employment or promotion, terminated or otherwise discriminated against because of the disability or request for an accommodation.
The only way to know for sure is to contact us. Initial consultations and evaluations for employment related violations are confidential and free, so there is no cost to you to find out if you have a valid concern and are entitled to compensation.