California has some of the nation’s strongest disability discrimination protections, primarily through the Fair Employment and Housing Act (FEHA), which often provides broader coverage than federal law. If you face legal challenges over employment or accommodation protections, you might wonder whether state or federal discrimination laws apply to your case. Understanding the interaction between FEHA and ADA is crucial when navigating legal systems and fighting for your rights.
The Fair Employment And Housing Act (FEHA)
The Fair Employment and Housing Act (FEHA) protects the rights of people to pursue, secure, and hold employment without discrimination based on mental or physical disability. Under FEHA, a disability can be classified as a mental (including cognitive), physical disability, or a medical condition.
Mental Disability
The meaning of mental disability includes any psychological or mental impairment, such as:
- Mental or emotional illness
- Organic brain syndrome
- Mental retardation, and
- Specific learning impairments that restrict a significant life activity, having a record of similar disability, or being considered as having or having had this disability.
Mental disability constitutes any psychological or mental condition or disorder that needs special education or related services. Mental disability does not constitute the following:
- Pyromania or current illegal drug use
- Kleptomania
- Compulsive gambling
- Sexual behavior disorders
Physical Disability
The meaning of physical disability constitutes any anatomical loss, cosmetic disfigurement, condition, disorder, or physiological disease. It also means having a history of a similar disability or being considered as having or having had a disability that:
- Restricts a significant life activity without regard to mitigating measures like medications, assistive devices, prosthetics, or reasonable accommodations
- Affects one or more body systems, including speech organs, respiratory, special sense organs, musculoskeletal, immunological, neurological, and reproductive systems
- Any other health disability that needs special education or related services.
Medical Condition
FEHA also protects people against discrimination in employment based on their medical conditions. A medical condition means genetic characteristics, or any health disability related to a diagnosis of cancer or a record of cancer.
The Americans With Disabilities Act (ADA)
The Americans with Disabilities Act of 1990 prohibits the following from discriminating against qualified persons with disabilities:
- Employment and labor unions
- State and local governments
- Private employers
Under this law, you have a right in the job application process, privileges of employment, job training, compensation, advancement, hiring, firing, and other terms and conditions. ADA covers companies with 15 or more workers, but local and state governments are covers irrespective of size.
Types Of Disability Discrimination In The Workplace
Disability discrimination is a common and complicated form of discrimination in California workplaces. This form of discrimination can manifest in various ways. Sometimes, disability discrimination can come from people who ‘’mean well’ but act in a manner that cannot benefit a disabled worker. You can only gather evidence if you understand what qualifies as disability discrimination. The following are behaviors that are considered disability discrimination:
- Being excluded from rewards and activities — Your employer can intentionally exclude you from rewards and activities because of your disability. Some activities include hikes or events organized deliberately over a medical schedule.
- Being forced to quit — Employers can start a campaign that can make your work increasingly unfavorable to make you quit your job.
- Deliberate sabotage — An employer can make changes or decisions that cannot benefit you. This will include uninstalling accommodative software, removing doorstops, or placing items on a high shelf.
- Harassment and refusal to stop harassment — Authority’s refusal to address the harassment when made aware, or harassment from managers or coworkers aware of your disability.
- Insensitive and disparaging comments — Undercutting, mocking, or cruel comments target you.
- Sudden change in attitude — A coworker's or employer's attitude can change abruptly if your disability becomes apparent.
- Denying you reasonable accommodation — Your employer can deny you reasonable accommodation by claiming that any accommodation is unreasonable. He/she can also refuse to accommodate you intentionally or refuse to enter negotiations to find an amicable solution.
- Removal of duties — Your employer can remove you from some duties once he/she learns of your disability.
- Denial of opportunities — An employer can fail to select you to lead projects or often pass you over for promotion, regardless of your performance.
The Importance of the FEHA and ADA “Interactive Process” and Steps Employers Must Take
According to FEHA and ADA, employers must engage in an ‘’interactive process’’ and offer reasonable accommodations to disabled workers. Your employer must initiate the process if your disability is known or apparent. Your employer should understand this ‘’interactive process’’ and what he/she should do to adhere to the requirements.
The objective of the interactive process is to establish if you can carry out the crucial duties of your job. It also seeks to ascertain if a reasonable accommodation will permit you to carry out those duties. An employer must offer you accommodation if a reasonable accommodation exists. Your employer can take the following steps to achieve this objective:
Establish If Your Disability Is Covered Under FEHA or ADA
According to the ADA, a disability is an actual mental or physical impairment that limits major life activities. On the other hand, FEHA defines a disability as a mental or physical disability that merely restricts a significant life activity.
Establish The Crucial Roles Of Your Job
Your employer should assess your job and establish the critical roles of your position.
Request Medical Certification
An employer is generally not permitted to ask about the specifics of your medical condition, but may request documentation describing your functional limitations relevant to essential job duties. However, the employer can only request a medical certification stating the functional limitations arising from your disability.
Establish If Functional Limitations Affect Your Essential Duties
An employer should establish whether you will be prevented from carrying out any duties based on your functional limitations. The employer should also discuss whether these limitations prevent you from performing essential duties.
Consider Any Reasonable Accommodations
Your employer should consider any reasonable accommodations permitting you to carry out essential roles. The employer should discuss with you in good faith to determine any reasonable accommodations you will suggest. The process can only be interactive if the employer requests your input. However, an employer is not required to offer you preferred accommodation, just reasonable accommodation. Additionally, the employer should not offer you accommodation that will cause undue hardship.
Protecting Private Medical Information
The law establishing the ‘’interactive process’’ stipulates that your employer can secure a medical assessment from a preferred healthcare provider. The medical evaluation must be job-related and consistent with work necessity. It must be restricted to establishing the functional limitations that need reasonable accommodation.
The amended law has new and detailed rules regarding medical and psychological assessments and inquiries. It is illegal to require a medical evaluation before an applicant's job offer is extended. It is also an offense for an employer to set conditions on the use of medical assessments after a conditional job offer is extended.
The law also states that medical or psychological assessments, including fitness for duty assessments, can be used during employment. The assessments can only be used if they meet the standards of job-relatedness and company necessity.
Differences In Coverage Between ADA And FEHA
ADA and FEHA are laws that protect disabled employees from discrimination. These statutes offer similar protections that prevent employers from discriminating against qualified workers based on their disability. However, the following are the key differences between ADA and FEHA:
- ADA covers only companies with 15 or more workers for each working day in 20 or more calendar weeks. On the other hand, FEHA covers companies that have five or more workers.
- FEHA covers more employers; any person covered under ADA will be covered under FEHA, not vice versa. Companies with five to 14 workers will only be covered under FEHA.
- According to the ADA, disability is a mental or physical impairment that significantly limits you from carrying out a significant life activity. On the other hand, you are protected under FEHA if you have a condition that limits a primary life function. You are protected under this law regardless of whether the disability is substantial.
However, there is one area where both FEHA and ADA are applicable. They both apply where mitigating measures cannot be considered. Under both FEHA and ADA, you are deemed disabled regardless of your use of technology, medication, or assistive devices used to mitigate the effects of your disability. You are still entitled to protections even if your disability is managed through devices or medication.
Securing FEHA or ADA Protection
You must disclose your disability to someone representing your employer so that the FEHA or ADA laws protect you. It can be a human resources person or supervisor. You do not have to reveal your disability to coworkers or anyone, but your employer must be aware of your disability. This will help you secure legal protection.
Your medical information must be treated with utmost confidentiality. You can only reveal it to your manager or supervisor, who needs to know about the accommodation and any limitations on your work or roles.
Proving Discrimination Based On Disability
You must prove the following if you want to hold your employer accountable for violating FEHA or ADA laws:
- Your employer mistreated you because of your disability
- You were qualified to perform the job in question
- Your employer believed that you had a disability or that you had a disability at the time of the violation
You can only enjoy legal protection against disability discrimination by proving that you have a covered disability or that your employer perceived you to have a covered disability. A covered disability is a mental or physical impairment that significantly restricts a significant life activity. You may need to provide medical documentation, such as doctor’s notes or medical records, to substantiate your history of a disability.
Additionally, you must provide witness or correspondence testimony to prove that your employer believed that you had a disability.
Proving Negative Employment Decisions
An employer’s discrimination against your disability while making employment decisions can be overt or covert. It can be overt discrimination if your employer makes comments about your disability before denying you work or pay. On the other hand, it can be covert discrimination if your employer treats you differently from similarly qualified workers without disability. You can prove covert discrimination through:
- Work history
- Work commendations
- Personnel records
- Witness testimony
- Job descriptions
- Correspondence, and
- Documentation of your qualifications
Gather sufficient evidence and present it to a skilled workplace discrimination attorney. The attorney will take you through the steps to file a lawsuit against your employer.
Proving Harassment
You can only prove disability-based discrimination or harassment by providing evidence that your employer engaged in unwanted and offensive behavior. Hostile behavior can include name-calling, insults, disrespectful gestures, and offensive jokes. Witness testimony, copies of complaints, and employment records can help you prove that the hostile behavior occurred.
You must also prove that your employer had control over your harasser if you are a victim of this behavior. Proving that your employer failed to take action to address the harassment is also important.
Proving Your Job Qualifications
Most employers violate FEHA and ADA statutes by firing, refusing to hire or promote, or refusing to accommodate people with disabilities. It is an offense for an employer to ignore or exclude a person who can perform the essential functions of a job, with or without reasonable accommodation. Essential job functions are the basic roles of a job.
An employer cannot require you to perform job functions that are not considered essential duties of the position. You can provide the following evidence to prove that a function is not essential:
- The performance of the function does not need substantial skill or expertise
- There are many workers who can perform the function
- The function is not the reason that the job exists
You can also prove the advantages or disadvantages of a job duty by providing job descriptions and testimony regarding what the job involves. It is also important to prove you are that you are qualified by presenting documents outlining your education, job record, relevant licenses and employment commendations.
Find An Experienced Employment Attorney Near Me
If you believe that your employer has violated your disability rights at work, you should act fast. An attorney can help you understand the connection between FEHA and ADA and guide you in seeking compensation.
At Leland Law, we have skilled attorneys who can help you protect your rights under state and federal laws. We understand how FEHA and ADA laws work, and we will incorporate them for your advantage. We serve clients throughout California and can help you if you have faced discrimination, including being denied employment or accommodation. Contact us at 866-449-6476 to speak to one of our attorneys.
