San Diego Disabilities and Accommodations Lawyer
Disabilities and Accommodations
Lawsuits: Individuals who experience discrimination or other violations of law can often file a lawsuit in a court. It may be necessary to go through the agency (administrative) complaint process first. Contact the responsible agency as soon as possible to find out when and if you can file a lawsuit. When a lawsuit is file you should always choose an experienced Employment Law attorney. Mr. Rodenbo tenaciously and firmly stands behind the rights of employees who have been wronged which has resulted in collecting millions.
STATE LAW:
The Fair Employment and Housing Act (FEHA) protects the right of individuals to seek, obtain, and hold employment without discrimination on the basis of physical or mental disability or medical condition. It also prohibits retaliation against a person who has opposed unlawful discriminatory practices under the FEHA or participated in an investigation into unlawful employment practices. The FEHA also prohibits harassment on the basis of a person’s disability.
Definition of Disability and Medical Condition
1. Disability The definition of “disability” under the FEHA includes both physical and mental disabilities.
a. Physical disability
Physical disability includes having any physiological disease, disorder, condition, cosmetic disfigurement or anatomical loss, or having a record of such impairment, or being regarding as having or having had such an impairment, that:
affects one or more body systems (neurological, immunological, musculoskeletal, special sense organs, respiratory, speech organs, cardiovascular, reproductive, digestive, genitourinary, hemic, lymphatic, skin and endocrine); and
limits a major life activity without regard to mitigating measures, such as medications, assistive devices, prosthetics or reasonable accommodations; or
any other health impairment that requires special education or related services.
b. Mental disability
Mental disability includes any mental or psychological disorder, such as mental retardation, organic brain syndrome, emotional or mental illness, and specific learning disabilities that limit a major life activity, or having a history of such impairment or being regarded as having or having had such an impairment. Mental disability includes any mental or psychological disorder or condition that requires special education or related services. Mental disability does not include sexual behavior disorders, compulsive gambling, kleptomania, pyromania or current unlawful drug use.
2. Medical Condition
The FEHA also forbids discrimination in employment on the basis of medical condition. “Medical condition” refers to 1) any health impairment related to or associated with a diagnosis of cancer or a record or history of cancer; and 2) genetic characteristics.
B. Covered Employers
California employment discrimination law covers nearly all employers. An “employer” for purposes of the FEHA includes anyone regularly employing five or more persons, whether full or part-time; any person acting as an agent of an employer, directly or indirectly; state and local governments; employment agencies; and labor organizations. (d)). For purposes of harassment, an employer includes anyone regularly employing one or more persons. In comparison, federal law requires employment of 15 or more employees before an employer will be covered, whether the disability is physical or mental
C. Employer Defenses to Discrimination in California
An employer may refuse to hire or may discharge a person with a physical disability if the person is unable to perform the essential functions of the job even with reasonable accommodation. Also, the employer may refuse to hire or may discharge an individual with a disability who cannot perform the essential functions of the job in a manner which would not endanger his or her health, or the health and safety of others even with reasonable accommodation. These two defenses require a case by case evaluation of each person’s abilities and limitations with regard to the specific job in question.
D. Employers Must Make Reasonable Accommodations
Employers must make reasonable accommodations for applicants and employees with disabilities, unless the accommodation would impose an undue hardship on the employer. Examples of reasonable accommodations include making facilities accessible and restructuring jobs, which might include reassigning or transferring an employee, developing part-time or modified work schedules, acquiring or modifying equipment, minor restructuring of the work site, and providing readers or interpreters.
E. Nondiscrimination in Recruitment and Testing
Employers must give equal consideration to individuals with disabilities in recruitment activities and are required to make reasonable accommodations during the recruitment process.
F. Complaint Procedures
If you believe that you have been discriminated against, you may file a complaint with the Department of Fair Employment and Housing (DFEH) within one year of the occurrence of the alleged discriminatory act. If you did not learn of the act of discrimination until after a year had passed, the period for filing may be extended up to 90 days. After the complaint is filed, two avenues of relief are available. The DFEH may attempt to resolve the matter through conciliation and, if necessary, an administrative hearing before the Fair Employment and Housing Commission (FEHC). Alternatively, the DFEH may issue a “right to sue letter” which allows you to file a lawsuit against the employer directly in court. However, you must file with the DFEH and receive a right-to-sue letter before a court will hear your case.
G. Miscellaneous California Employment Discrimination Laws
In addition to the FEHA, there are a number of other California laws that protect disabled employees. State agencies must make reasonable accommodations for an otherwise qualified individual’s physical or mental limitations, unless such accommodations would impose a hardship on the agency’s operations. Also, any program or activity funded by the state must not discriminate against persons with disabilities. Other anti-discrimination statutes provide that:
No otherwise qualified person may be denied the right to receive a teaching credential, training, or
to engage in practice teaching, on the grounds that the person is an individual with a disability.
No person may be denied state employment because of blindness or color blindness, unless normal
eyesight is absolutely necessary for the job.
Discrimination based on physical handicap or medical condition against potential employees on public works projects is prohibited.
FEDERAL LAW
A.The Americans With Disabilities Act
The Americans With Disabilities Act (ADA) is the federal law equivalent of the FEHA. Title I of the ADA prohibits discrimination on the basis of disability by employers that employ 15 or more employees with respect to hiring and all terms and conditions of employment.. Title I does not apply to the federal government.
The discrimination prohibited by the ADA includes segregating, limiting or classifying any job applicant or employee because of a disability in a manner adversely affecting the individual’s status or opportunities. Discrimination can include failing to make a reasonable accommodation for an individual’s physical or mental impairments, or using employment tests and standards that tend to screen out persons with disabilities, unless such tests or standards are shown to be job-related or consistent with business necessity.
The ADA prohibits discrimination or retaliation against anyone who has opposed acts or practices unlawful under the ADA, has asserted a claim under the ADA, or has assisted in the assertion of such a claim by acting as a witness or aiding in the investigation of ADA violations.
1. Definition of Disability
The ADA protects Aqualified persons@ with a disability. The definition of Adisability@ under the ADA includes both physical and mental impairments that substantially limit one or more of the major life activities, a record of such impairments, or being regarded as having such impairments. In determining whether an individual is substantially limited in one or more major life activities, employers may consider the effect of any mitigating measures
For purposes of the ADA’s employment protections, employees or applicants currently engaged in the illegal use of drugs are specifically excluded. Additionally, the definition of disability does not include homosexuality and bisexuality, transvestism, transsexualism, pedophilia, exhibitionism, voyeurism, gender identity disorders not resulting from physical impairments or other sexual behavior disorders, compulsive gambling, kleptomania, or pyromania.
2. Employers Must Reasonably Accommodate Disabilities
The ADA prohibits covered employers from failing to provide reasonable accommodation to the known physical or mental limitations of an otherwise qualified individual, unless the employers can demonstrate that such accommodation would impose an undue hardship.
a. Reasonable Accommodation
The determination of what constitutes a “reasonable accommodation” required by the ADA will depend on specific circumstances and might include modified work schedules, job restructuring, changes to work areas or equipment, and similar adjustments.
b. Undue Hardship
An employer may be excused from the obligation to make an accommodation where it can be demonstrated that undue hardship would result to the employer’s business. Where undue hardship will result, the accommodation is not reasonable and will not be required. “Undue hardship” is defined as any action requiring significant difficulty or expense, taking into account a number of factors, including cost, complexity and impact on the work performed.
Excerpts taken from Legal Rights of Persons with Disabilities handbook.
http://www.caag.state.ca.us/consumers/pdf/disabled.pdf
http://www.disabilityaccessinfo.ca.gov/employ.htm#employment