Mental Disability Discrimination

California Fair Employment and Housing Act, California Government Code sections 12900-12976 (FEHA): It is unlawful for an employer to refuse to hire; to discharge an employee (e.g. fire or terminate an employee); to refuse to select or to bar or discharge an employee from a training program leading to employment; or to discriminate against the person in compensation or in terms, conditions, or privileges of employment because of the employee's physical disability, mental disability, or medical condition. California Government Code section 12940, subdivision (a).

The phrase “terms, conditions, or privileges of employment” encompasses a wide range of workplace activities and practices. For example, intimidation, use of discriminatory insults and slurs, and discriminatory labels in the workplace based on a person’s disability is unlawful under FEHA. Discriminatory performance evaluations and denials of training in the workplace based on a person’s disability are unlawful under FEHA.

Under FEHA, a “Mental Disability” is defined to include “any mental or psychological disorder or condition, such as intellectual disability, organic brain syndrome, emotional or mental illness, or specific learning disabilities, that limits a major life activity.” California Government Code section 12926, subdivision (j). FEHA extends protections to individuals the employer erroneously or mistakenly believes to have a mental disability that limits a major life activity. “It is the intent of the Legislature that the definitions of . . . mental disability be construed so that applicants and employees are protected from discrimination due to an actual or perceived . . . mental impairment that is disabling, potentially disabling, or perceived as disabling or potentially disabling.” California Government Code section 12926.1. When an employer harbors misconceptions about an individual having a substantially limiting disability when in fact the disability is not substantially limiting or is nonexistent, this can be discrimination under FEHA. Misconceptions such as this often stem from stereotypic assumptions that are not indicative of the employee’s or job applicant’s actual abilities to perform the duties of a job. FEHA’s prohibition on “perceived” disability discrimination helps protect individuals from being rejected for a job or fired from a job because of myths and fears associated with disabilities. Therefore, if an employer regards an employee or treats an employee as though they have a mental condition that makes achievement of a major life activity difficult, such is enough to constitute a mental disability.

To establish a claim for mental disability discrimination under FEHA, the mental disorder or condition must limit a major life activity. If a mental or psychological disorder or condition makes the achievement of the major life activity difficult, then it limits the major life activity. It is easier to prove the existence of a mental disability under FEHA than under federal law, which requires that the mental or psychological disorder or condition must “substantially limit” a major life activity to be considered a mental disability. Federal law is the floor of protection for persons with disabilities, California law has always provided additional protections. California Government Code section 12926.1.

The phrase “major life activity” includes physical, mental, and social activities and working. Examples of a major life activity may include speaking, learning, breathing, walking, reaching, sleeping, personal care and grooming, performing manual tasks, lifting, standing, hearing, and seeing.

Mental disorders or conditions include but are not limited to:

• Intellectual or cognitive disabilities.
• Autism or Asperger's syndrome.
• Organic brain syndrome.
• Tourette syndrome.
• Emotional or mental illness.
• Specific learning disabilities that require special education or related services.
• Clinical depression.
• Down syndrome.
• Schizophrenia.
• Bipolar disorder.
• Post-traumatic stress disorder.
• Cerebral palsy.
• Paranoia.
• Alzheimer's disease.
• Depression and personality disorders.
• Obsessive compulsive disorder.

Mental disabilities do not include "sexual behavior disorders, compulsive gambling, kleptomania, pyromania, or psychoactive substance use disorders resulting from the current unlawful use of controlled substances or other drugs." California Government Code section 12926, subdivision (j)(5).

To successfully bring a claim for disability discrimination an employee must be able to perform the essential duties of the job in question with reasonable accommodations. If the employee or applicant cannot perform the essential functions of the job even with reasonable accommodations, then the individual is not qualified for the job and the employer will likely not be found liable for disability discrimination despite having decided to fire the individual or not to hire the individual due to his or her disability.

Essential duties or functions of the job are defined as ”fundamental job duties of the employment position the individual with a disability holds or desires,” such as functions essential to the reason the job position exists. They do not include "marginal functions of the position." California Government Code section 12926, subdivision (f). Factors used in determining whether the function is essential include whether the function was listed in the job description or advertisement for the job, and the amount of time spent on the job performing the function in question.

It 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, subdivision (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 nondisabled 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.

Reasonable Accommodations include but are not limited to:

"Making existing facilities used by employee readily accessible to, and usable by, individuals with disabilities."

"Job restructuring, part-time or modified work schedules, reassignment to a vacant position, acquisition or modification of equipment or devices, adjustment or modifications of examinations, training materials or policies, the provision of qualified readers or interpreters, and other similar accommodations for individuals with disabilities." California Government Code section 12926, subdivision (p).

Giving a disabled employee time to recuperate or heal by leaving their job open for a period of time is a reasonable accommodation, "where it appears likely that the employee will be able to return to an existing position at some time in the foreseeable future." Jensen v. Wells Fargo Bank (2000) 85 Cal.4th 245, 263.

Offering the disabled employee reassignment a position that is vacant. Hanson v. Lucky Stores (1999) 74 Cal.App.4th 215, 227.

If you are experiencing discrimination due to a disability or medical condition, contact the experienced disability discrimination attorneys at Kokozian Law Firm, APC at 323-857-5900, or Contact us via our online form. Ask about our free initial consultation. We advance all costs. No recovery, no fee.