California’s Fair Employment and Housing Act (“the FEHA”) and
related regulations promulgated by the Fair Employment and Housing Council provide important protections to employees and applicants with disabilities.[1] These protections extend to persons who are disabled or considered to be disabled, as well as to those who are associated with people who are disabled.[2]
Differences between California and Federal Disability Law
The FEHA provides protections that are independent from and in addition to those in the federal Americans with Disabilities Act of 1990 (P.L. 101-336).[3] Government Code section 12926.1 describes the federal act as providing a “floor of protection,” and states that California law “has always, even prior to passage of the federal act, afforded additional protections.”[4]
For example, the FEHA applies to employers with five or more employees.[5] The ADA requires 15 or more employees.[6]
Furthermore, the ADA requires that an impairment “substantially limit” one or more major life activities.[7] The FEHA only requires that an impairment “limit” a major life activity.[8]
The FEHA also protects a non-disabled individual who an employer “erroneously or mistakenly” believes has “any physical or mental condition that limits a major life activity.”[9] It also prohibits discriminating against a person for requesting accommodation.[10]
Finally, the ADA caps the amount of compensatory and punitive damages that a plaintiff can recover at relatively low amounts.[11] The FEHA contains no such limitations.
Common Disability-Related FEHA Claims
Common disability-related claims under the FEHA include disability discrimination, disability harassment, failure to accommodate, failure to engage in an interactive process, retaliation, and failure to prevent disability-based harassment. These claims are technically separate but in practice are often interrelated. For example, a plaintiff may claim that the employer discriminated against them because of their disability, denied their request for accommodation, failed to engage in an interactive process, and then terminated them. The evidence with respect to those claims will probably overlap, but the plaintiff need only prevail on one of them to establish liability under the FEHA.
The most common disability-related claims are summarized here and explored in more detail elow:
Disability Discrimination: The FEHA proscribes two types of disability discrimination: (1) discrimination arising from an employer’s intentionally discriminatory act against an employee because of their disability (disparate treatment discrimination), and (2) discrimination resulting from an employer’s facially neutral practice or policy that has a disproportionate effect on employees suffering from a disability (disparate impact discrimination).[12]
Disability Harassment: The FEHA also proscribes disability-based harassment, whether verbal, physical, or visual.[13]
Reasonable Accommodation: The FEHA requires that employers make reasonable accommodations for the known physical or mental disabilities of applicants and employees “unless based upon a bona fide occupational qualification, or, except where based upon applicable security regulations established by the United States or the State of California.”[14] However, an employer is not required to make an accommodation “that is demonstrated by the employer or other covered entity to produce undue hardship to its operation.”[15]
Failure to Engage in an Interactive Process: The FEHA requires employers to engage in a timely, good faith, interactive process with the employee or applicant “to determine effective reasonable accommodations, if any, in response to a request for reasonable accommodation by an employee or applicant with a known physical or mental disability or known medical condition.”[16]
Retaliation: The FEHA makes it unlawful for an employer “to discharge, expel, or otherwise discriminate against any person because the person has opposed any practices forbidden under this part or because the person has filed a complaint, testified, or assisted in any proceeding under this part.”[17] The FEHA also provides that it is illegal for an employer to retaliate or otherwise discriminate against a person for requesting accommodation for a disability.[18]
Failure to Prevent Discrimination and Harassment: The FEHA makes it unlawful for an employer “to fail to take all reasonable steps necessary to prevent discrimination and harassment from occurring.”[19]
Disability Discrimination Enforcement in California
The Department of Fair Employment and Housing (“DFEH”) is tasked with enforcing California’s civil rights laws, including those set forth in the FEHA.[20]
Of the employment complaints lodged with the DFEH, a significant portion involve disability discrimination.[21] Indeed, in 2019 and 2020, disability discrimination was the most common basis for an employment complaint filed with the DFEH.[22] The federal data generated by the Equal Employment Opportunity Commission (“EEOC”) reflects a similar conclusion: In 2021, disability discrimination was the second most common charge filed with the Commission.[23]
If you have questions about your disability rights in the workplace in California, please feel free to contact the experienced attorneys at Hunter Pyle Law for a free and confidential initial intake. We can be reached at inquire@hunterpylelaw.com or at (510) 444-4400.
[1] The Fair Employment and Housing Commission (“FEHC”) is vested with the power “[t]o adopt, promulgate, amend, and rescind suitable rules, regulations, and standards … to interpret, implement, and apply all provisions of [the FEHA]….” Cal. Gov’t Code § 12935 (a). Courts normally give “great weight” to the FEHC’s interpretation of its own regulations and the statutes under which it operates.” Page v. Superior Court, 31 Cal.App.4th 1206, 1213–1214 (1995).
[2] Cal. Gov’t Code § 12926.1(b) (West 2021); See Rope v. Aut-Chlor System of Wash., Inc., 220 Cal.App.4th 635, 655-660 (2013).
[3] Cal. Gov’t Code § 12926.1(a).
[4] Id.
[5] Cal. Gov’t Code § 12926(d).
[6] 42 U.S.C. § 12111(5)(A).
[7] 42 U.S.C. § 12102(1).
[8] Cal. Gov’t Code § 12926.1(c).
[9] Id.
[10] Cal. Gov’t Code § 12940(m)(2).
[11] 42 U.S.C. § 1981a(b)(3).
[12] Cal. Gov’t Code § 12940(a); Knight v. Hayward Unified Sch. Dist., 132 Cal.App.4th 121, 128–129 (2005).
[13] Cal. Gov’t Code § 12940(j); Cal. Code Regs. tit. 2 § 11019(b).
[14] Cal. Gov’t Code § 12940(m), (n).
[15] Id.
[16] Section 12940, subdivision (n) imposes separate duties on the employer to engage in the “‘interactive process’” and to make “‘reasonable accommodations.’” Wilson v. County of Orange, 169 Cal.App.4th 1185, 1193 (2009); Wysinger v. Auto. Club of S. Cal., 157 Cal.App.4th 413, 424–25 (2007).
[17] Cal. Gov’t Code § 12940(h).
[18] Id. at § 12940(l)(4).
[19] Id. § 12940(k).
[20] About DFEH, Dep’t of Fair Emp. & Hous. (June 6, 2022, 7:44 PM), https://www.dfeh.ca.gov/aboutdfeh/.
[21] See Dep’t of Fair Emp. & Hous., 2020 Annual Report 21-22 (2020).
[22] Id. at 15; Dep’t of Fair Emp. & Hous., 2019 Annual Report 9 (2019). Even prior to the COVID-19 pandemic, disability discrimination constituted a large share of the employment allegations investigated by the DFEH. See Dep’t of Fair Emp. & Hous., 2017 Annual Report 25 (2017). For example, in 2017, disability discrimination was the second most common basis for an employment related complaint. Id.
[23] U.S. Equal Emp. Opportunity Comm’n, Charge Statistics (Charges filed with EEOC) FY 1997 Through FY 2021 (2020).