Unfortunately, not all employers follow the law. The Census Bureau estimates that, in 2019, disabled workers earned 66 cents for every dollar than their non-disabled peers. For a group that likely has higher medical costs, this wage gap can be devastating. Workplace discrimination doesn’t just come in the form of lower salaries, either: From hiring to working environment to decisions on promotions and firings, employees with disabilities may face both subconscious and purposeful bias from leadership.
Both the FEHA and ADA identify the groups they protect by defining what constitutes a disability. Luckily for California employees, the FEHA builds off and augments federal definitions and therefore applies to a larger group of people. California code protects those with:
Mental disabilities (including mental illness, intellectual disability, or other neurological conditions)
Physical disabilities (including chronic disease, loss of bodily functions, disfigurement, or other mobility impairments)
Special Education disabilities (any condition that requires or has required accommodations within the classroom)
History of disability (known by the employer and including any of the above)
Perceived disability or assumed future disability (regardless of actual disability status)
Chronic medical conditions
Genetic variations that may be linked to disabilities
Milder conditions that do not limit one’s ability to participate in day-to-day life are evaluated individually, but typically do not pass the threshold to be covered by the FEHA. For the large population of employees who meet the FEHA’s definition of disability, the law can help protect against the following transgressions.
Bias in Hiring, Promotions, and Firing
As long as an applicant’s disability does not prevent them from performing the necessary functions of a position, an employer may not treat them differently. Further, the hiring process itself may not contain any discriminatory elements. Any part of an application that evaluates skills not needed for the position could put disabled applicants at a disadvantage. Whether purposeful or not, this is not just unfair to disabled job seekers—it is illegal.
Likewise, disabled employees cannot be evaluated on issues that have no bearing on the completion of their job duties. Even if they need accommodations to fulfill the position’s requirements, all that matters is their performance—not any factors that might affect it. If employers overlook their disabled workers for raises, promotions, or other opportunities, they are likely violating both the ADA and the FEHA.
Failure to Provide an Interactive Accommodations Process
Once an employer learns one of their employees has a disability, they should take the initiative to ask if any accommodations are needed. The employee may also raise the topic or have someone else do so on their behalf. A disabled worker’s expression of their need is only the first part of what the ADA and FEHA call the “interactive process” employers must use to determine requirements for accommodation.
The process involves an active dialogue between the employer and the disabled worker to determine their needs and possible solutions. Both parties should work together to identify what is “reasonable” for the company and will provide the assistance the employee needs. If there are multiple potential solutions an employer can choose which to implement. Moving forward, the employer should continue to check in to see whether the accommodations are working or if changes and further help are needed.
If an employer fails to provide accommodations, fails to make sure those accommodations meet the employee’s needs, or fails to make necessary changes requested by a disabled employee, that person may be able to bring a claim for discrimination.
Harassment of Disabled Employees
Sometimes people make jokes to disguise their discomfort discussing certain topics, and disability often falls under this umbrella. While a mildly inappropriate comment made once does not constitute grounds for a lawsuit, discriminatory remarks or treatment that are:
responsible for a hostile environment, or
responsible for disciplinary actions taken against the disabled employee
Above is classified as illegal harassment. If you believe you are facing harassment, we urge you to record the date, time, instigator, and nature of each occurrence, as such evidence can be priceless in an investigation. Then, speak to a lawyer.
Your Right to Medical Leave Under FMLA and CRFA
Anyone can become disabled at any time, and those who have disabilities may experience “flares,” or periods of worse symptoms. If a worker’s condition is bad enough that it interferes with their ability to perform their job, they may be able to take time off to recover without risking their employment.
The Family and Medical Leave Act (FMLA) and California Family Rights Act (CFRA) allow eligible employees a protected period of unpaid leave during which they will retain their insurance coverage and employment status. To be eligible, employees must have worked at an eligible company for at least 1,250 hours over the course of the previous 12 months. FMLA/CFRA leave can be used for:
An employee’s serious health condition
A parent, child, spouse, or domestic partner in need of care for a serious health condition
The birth of a child
A new adoption or foster placement
Needs arising from a parent’s, child’s, or spouse’s active military service
When returning from FMLA, an employee must be reinstated to their previous position or given a new job that is equivalent in location, duties, hours, skills, and compensation including benefits. Loss of compensation, benefits, or any other favorable aspects of a job may signal illegal retaliation.
Making a Claim Regarding Disability Discrimination
Violating disability laws isn’t just an issue of making one person’s life worse. It’s part of a larger pattern of relegating people with disabilities to second-class status. That’s why we vigorously defend employees who come to us with stories of workplace discrimination.
If you are tired of facing a workplace that is inhospitable or actively hostile toward you, there are many different ways you can file a claim. The Equal Employment Opportunity Commission (EEOC) and California’s Department of Fair Employment and Housing (DFEH) both investigate complaints and may be able to remedy the situation. Though you don’t need legal representation to work with either agency, they will not provide an attorney or other advocate to promote your cause.
Filing a lawsuit for discrimination under the ADA and/or FEHA may require some extra administrative work, as government enforcement agencies typically prefer to investigate and try to resolve claims before sending them to court. It is possible to sue—but would-be litigants must receive permission to file a case. A lawyer can help you complete the necessary steps and gather all the materials you need for a lawsuit.
Disability discrimination is toxic within a workplace, and its targets often don’t know how to respond. Speak to the attorneys at Frontier Law Center if you have questions about whether the injustices you’re facing at work are against the law.
The information on this website is for general information purposes only. Nothing on this site should be taken as legal advice for any individual case or situation. This information is not intended to create, and receipt or viewing does not constitute, an attorney-client relationship.