Under the 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).
Physical disabilities, mental disabilities, and mental conditions are defined broadly under the law and include both (1) actual disabilities and conditions, and (2) situations where an employer perceives that an employee has a disability or condition. Cal. Gov. Code §12926.1(b).
What Is A 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;
- Limits a major life activity. If a physical disability 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 also includes the following:
- Back conditions,
- Hypertension and high blood pressure,
- Hypersensitivity to Tobacco,
- 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,
- Cystic fibrosis,
- Sickle Cell Anemia,
- Polycystic kidney,
- Tuberculous sclerosis,
- Huntington Disease,
- Spinal muscular atrophy,
- Lung carcinoma,
- Heart Disease,
- Parkinson Disease,
- Crohn's Disease
- Brain seizures
- Color blindness
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.
Able To Perform The Essential Duties
To bring a claim for discrimination based on an employee’s physical disability, the employee must be able to perform the “essential duties” of his or her position with reasonable accommodations. Green v. State of California, 42 Cal. 4th 254, 263 (2007). The essential duties/functions of the job are defined as duties of the employment position and they do not include the “marginal functions of the position.” Cal. Gov. Code §12926 (f).
For example, a plaintiff employee received a conditional offer for appointment as a correctional officer. However, 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.” The plaintiff was qualified for the position when he was given the conditional offer of employment but he failed to satisfy the prerequisites for permanent appointment to that position. Thus, the plaintiff failed to establish a prima facie case for disability discrimination. Hastings v. Department of Corrections, 110 Cal. App. 4th 963, 971 (2003).
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., 53 Cal. App. 4th 935, 950-51 (1997).
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(n).
- 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, 85 Cal. 4th 245, 263 (2000).
- Offering the disabled employee a position that is vacant. Hanson v. Lucky Stores, 74 Cal. App. 4th 215, 227 (1999).
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If you believe your employer has treated you adversely, including wrongfully terminated you, discriminated against you, retaliated against you, or harassed you, you should Contact Sani Law today to schedule a free initial consultation.