Physical Disability Discrimination

California Fair Employment and Housing Act (FEHA): It is unlawful for an employer to refuse to hire; to discharge or to terminate; 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. Cal. Gov. Code § 12940(a).

Under FEHA physical disabilities, mental disabilities, and mental conditions are defined broadly and include both actual disabilities and conditions, and situations where an employer perceives that an employee has a disability or condition. Cal. Gov. Code § 12926.1(b).

Physical Disability:

A physical disability is "[a]ny physiological disease, disorder, condition, cosmetic disfigurement, or anatomical loss that does both of the following:

• affects one or more of neurological, immunological, musculoskeletal, special sense organs, respiratory, speech organs, cardiovascular, reproductive, digestive, genitourinary, hemic and lymphatic, skin, and endocrine, and
• limits a major life activity.

If it makes achievement of a major life activity difficult then it is a limit on a major life activity. "Major life activity" is broadly construed and includes physical, mental, and social activities as well as working.

Physical disability includes but is not limited to:

• Back conditions,
• Hypertension and high blood pressure,
• Hypersensitivity to Tobacco,
• Obesity,
• Injury to: Shoulder, Eye, Foot, Wrist, Jaw, Neck, Leg, Hip, Ankle, Hand,
• Severe migraines, headaches,
• Severe pain,
• Injuries that require surgery such as head surgery, eye surgery, shoulder surgery, back surgery, neck surgery, foot surgery, hand surgery, hysterectomy,
• Diabetes,
• Cystic fibrosis,
• Arthritis,
• Ulcer,
• Lymphoma,
• Emphysema,
• Sickle Cell Anemia,
• Polycystic kidney,
• Tuberculous sclerosis,
• Asthma,
• Huntington Disease,
• Spinal muscular atrophy,
• Lung carcinoma,
• Osteoporosis,
• Heart Disease,
• Parkinson Disease,
• Bidactyly,
• Insulinoma,
• Fibromyalgia
• Scoliosis
• Histiocytosis
• HIV
• Blindness
• Deafness
• Allergies
• Paralysis
• Crohn's Disease
• Brain seizures
• Color blindness
• Cholera

Physical disability "does 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." Cal. Gov. Code § 12926.

To bring a claim an employee must be able to perform the essential duties with reasonable accommodations. Green v. State of California, (2007) 42 Cal. 4th 254, 263, citing Stats. 1992, ch. 913, § 1, p. 4282.

• Essential duties/functions of the job are defined as duties of the employment position." They do not include the "marginal functions of the position." Cal. Gov. Code §12926 (f) for example:
• Plaintiff had a conditional offer for appointment as a correctional officer. He was unable to complete the prerequisite training because of a permanent knee injury, which also "made it impossible for him to perform the essential functions of the position for which he was conditionally hired." Plaintiff was qualified for the position when he was given the condition offer of employment, but he failed to satisfy the prerequisites for permanent appointment to that position. Thus, Plaintiff failed to establish a prima facie case for disability discrimination. Hastings v. Department of Corrections, (2003) 110 Cal. App. 4th 963, 971.

It is also unlawful for an employer to "fail to make reasonable accommodations for the known physical or mental disability of an applicant or employee." Cal. Gov. Code § 12940(m).

Why is Notice Important? Notice is important because it is a requirement to show that the employer knew of the disability. In addition, it helps show that the employer discriminated against the employee based on that disability. It is also important to note the date in which the employer became aware of the disability because an employer must have knowledge of the disability at the time the employer discriminates against the employee. For example, knowledge of the disability by the employer must be before termination in order to show that the termination was on the basis of the disability. Once the employer is on notice of that disability, he/she may not discriminate based on that disability.

In very few instances knowledge of the disability may be inferred. If the symptoms are obvious signs of the disability, it could be said that the employer actually knew of the disability. For example, if an employee shows up to work and is limping on one leg and is then asked by his/her supervisor to do heavy lifting and is then fired because he/she failed to perform this task, it could be said that the employer actually knew of the disability and failed to accommodate that disability.

How Does this Affect Employees? Once the employer knows of the disability, he/she may now have to provide workplace accommodations for the disability even if the employee does not request a specific accommodation. Generally, the employee needs to request reasonable accommodations. However, there are some instances in which the employer is under a duty to initiate the discussion, such as when the need to accommodate is obvious.

What Should an Employee Do if He or She Has a Disability? In most cases, the employee must notify the employer of the disability. The best way to do so would be to provide some type of written notice to the employer that mentions the specific disability. This will help prove that the employer was actually aware of the disability. For example, if an employee notifies the employer in writing that he/she is suffering from a mental or physical disability covered under the Fair Employment and Housing Act and is soon thereafter terminated, it will be much easier to prove that the employer knew that the employee had a disability. On the other hand, if an employee does not provide written notice, it is then more difficult to prove that the employer was aware of the employee’s disability. Absent written notice, the employer will most likely claim that he/she was unaware of the disability and therefore could not have discriminated based on the disability. Therefore, written notice is the safe choice to prevent an employer from denying knowledge of a disability.

It is unlawful for an employer to "fail to make reasonable accommodation for the known physical or mental disability of an applicant or employee." Cal. Gov. Code § 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.

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." Cal Gov. Code. § 12926(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 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 renowned disability discrimination attorneys at Kokozian Law Firm, APC. 323-857-5900. Ask about our free initial consultation.