The California Fair Employment and Housing Act (FEHA) is about equal opportunity. One of the aims of FEHA, California’s preeminent antidiscrimination and antiharassment law, is to ensure “no Californians are denied the opportunity to prove themselves at jobs they are capable of doing just because of assumptions made on the basis of their medical history.” California Bill Analysis, A.B. 2222 Assembly, 8/28/2000. In furtherance of that goal, under FEHA, it is an unlawful employment practice for an employer (or any other person) to harass employees or job applicants because of their medical condition, physical disability, or mental disability. California Government Code section 12940(j)(1). Harassment can include offensive remarks about the person’s medical condition.
In addition, employers must take "all reasonable steps to prevent harassment from occurring." California Government Code section 12940(j)(1).
What is a Medical Condition?Under FEHA, physical disabilities, mental disabilities, and mental conditions are defined broadly. “The law of this state in the area of disabilities provides protections independent from those in the federal Americans with Disabilities Act of 1990 (P.L. 101-336). Although the federal act provides a floor of protection, this state’s law has always, even prior to passage of the federal act, afforded additional protections.” Under FEHA physical disabilities, mental disabilities, and mental conditions include both actual disabilities and conditions, and situations where an employer perceives that an employee has a disability or condition. California Government Code section 12926.1(b).
Under the FEHA, Medical Condition is defined as:
Scientifically or medically identifiable genes, chromosomes, or combinations or alterations of them that is known to be a cause of a disease or disorder in a person or his or her offspring, that is determined to be associated with an increased risk of developing a disease or disorder. Inherited characteristics known to be a cause of a disease or disorder in a person or his or her offspring, or that are determined to be associated with a statistically increased risk of any disease or disorder. California Government Code section 12926(i).
Cancer, which is a disease whereby certain body cells grow uncontrollably and spread to other parts of the body, is the most common and well-known condition protected under FEHA’s definition of medical condition. Workers diagnosed with cancer need support, encouragement, and a sympathetic ear from their employers. However, some employers fear that a cancer diagnosis will lead reduced productivity and excessive absenteeism. The employer may share with the worker stories about other employees who were diagnosed with cancer and how the disease got in the way of their work and caused the employer too many problems. The employer may advise that the worker is better off quitting the job and applying for disability benefits.
Circumstances Under Which Medical Condition Discrimination or Harassment are Likely AriseHarassment is normally a separate cause of action from discrimination. However, harassment is actionable as "discrimination" if it is "so severe or pervasive as to alter the conditions of [the victim's] employment and create an abusive working environment. "Clark County School Dist. v. Breeden (2001) 532 U.S. 268, 270.
While obvious examples of medical condition discrimination or harassment do occur (e.g. a supervisor telling an employee he is being demoted because he has a medical condition and the supervisor believes people with medical conditions make lousy employees, or a supervisor telling jokes about people with cancer), unlawful conditions in the workplace concerning medical conditions are more likely to arise under the circumstances described below.
A worker is diagnosed with cancer, and she informs her employer of the diagnosis. If the condition is easily treatable, and the treatment causes few side effects and requires little time off from work, the diagnosis is not likely to affect the worker’s employment.
Unfortunately, in many instances, the road to recovery from cancer is long and arduous. If the worker in such a situation chooses to continue working fulltime after her cancer diagnosis, she may at some point nonetheless need to take a medical leave of absence to recuperate from surgery or radiation treatment or chemotherapy under the California Family Rights Act or the Family Medical Leave Act. If the worker needs to extend the medical leave of absence beyond the original leave end date, the employer may begin pestering the worker. The employer may express frustration that the leave was extended and encourage the worker to ask her doctor to allow her to return to work sooner. The employer may pressure the worker to perform some of her job duties at home while on leave. If the worker chooses to take intermittent or reduced work schedule leave (California Code of Regulations, title 2, section 11090), as opposed to leave taken in one continuous period of time, the employer may complain that the leave of absence is disrupting its operations and that what the employer needs is a fulltime employee who will be at work, all day, every day, predictably and reliably. When the worker returns to work from a leave of absence, she may want to ease back into a fulltime schedule, while the employer may insist that she resume her fulltime schedule and full duties immediately. The employer may complain that the worker does not look well thereby presenting a poor image for the company, does not perform her duties as well as she used to, or that customers seem taken aback by her changed appearance and demeanor. The employer may harp that the worker seems fatigued and has difficulty concentrating and remembering things. The employer may complain about the worker’s continuing need to take time off work for doctor visits, further treatment, or because she does not feel well. The employer may leak information of the worker’s diagnosis and medical treatment to coworkers. Coworkers may then tell the worker that they have enough work of their own and cannot take up the slack if the worker cannot perform her duties as well as she used to. The employer may heap extra work on the worker and exclude her from meetings and social activities in hopes that she will quit.
Proving a Medical Condition Harassment ClaimUnder FEHA (as well as the similar but not identical federal Americans with Disabilities Act, United States Code, title 42, sections 12101-12213): To establish a claim of medical condition harassment, the plaintiff must generally show:
Under FEHA, employers are strictly liable for harassment by the plaintiff's direct supervisor carried out in the scope of his or her duties. For harassment by coworkers, the employer is only liable if it knew or should have known of the ongoing harassment and then failed to take immediate and appropriate corrective action to alleviate the hostile work environment. California Government Code section 12940(j)(1).
Reasonable AccommodationsIt is unlawful for an employer to "fail to make reasonable accommodation for the known physical or mental disability of an applicant or employee." California Government Code section 12940(m).
An employer "who knows of the disability of an employee has an affirmative duty to make known to the employee other suitable job opportunities with the employer and to determine whether the employee is interested in, and qualified for, those positions... if the employer offers similar assistance or benefit to other disabled or non-disabled employees or has a policy of offering such assistance or benefit to any other employees." Prilliman v. United Air Lines, Inc., (1997) 53 Cal.App.4th 935, 950-951.
Contact UsIf you are experiencing harassment due to a disability or medical condition, or if you believe your employer or ex-employer has otherwise violated your rights, call the experienced employment law attorneys at Kokozian Law Firm , APC or contact us via our online form.