What is a “Disability” under California Law

Under California law, a “disability” is broadly construed. In the employment law context, an individual qualifies as having a “disability” under California law if the individual:

1. Has a physical disability, mental disability, special education disability, or medical condition that limits one of the major life activities of the individual; and

2. Has a record or history of the disability or condition that is “known to the employer.”

Once a court finds that an individual has a qualifying disability under the first prong, it will then consider whether that disability “limits” one of their “major life activities.” This is a significant difference from the Americans with Disabilities Act under federal law, which requires a disability to “substantially limit” a major life activity.

Under California’s “limits” standard, the disability must make a major life activity “difficult” for the employee. California law identifies various “major life activities,” including physical, mental, and social activities, as well as working.

As to the second prong, having a record or history of the disability or condition “includes previously having, or being misclassified as having, a record or history of a mental or physical disability or special education health impairment of which the employer or other covered entity is aware.” However, generally speaking, all that is required for notice is that that the plaintiff show that the individual who took the adverse action knew about the plaintiff’s disability. See Soria v. Univision Radio L. A., Inc., 5 Cal.App.5th 570, 592 (2016) (citing Avila v. Continental Airlines, Inc., 165 Cal.App.4th 1237, 1247 (2008)). For example, an employer can know about a disability if the employee tells the employer, if the employer observes the condition, or is told about it by a third party. On the other hand, simply calling in to work sick without more is not sufficient to prove an employer’s knowledge of a disability. See Avila v. Continental Airlines, Inc., 165 Cal.App.4th 1237, 1249 (2008).

California law also protects individuals from discrimination due to perceived or potential disabilities. This includes when an individual is erroneously or mistakenly believed to have a physical or mental condition that limits a major life activity. A “perceived potential disability” means the condition has no present disabling effect but may, at some point, become a mental or physical disability or special education disability. Perceived or potential disabilities are discussed in more detail here. In some circumstances, California law also protects individuals who are associated with a person who has or is perceived to have a disability. Associational disability claims are discussed in more detail here.

California Law Protects Employees with Potential or Perceived Disabilities

While California law protects employees who are disabled, it also protects workers whose employers perceive them to have a physical or mental impairment that is disabling, potentially disabling, or perceived as disabling or potentially disabling. See Cal. Gov’t Code § 12926.1(b). In other words, California law protects workers from adverse employment actions because their employer “erroneously or mistakenly believed” them to have or have had a disability. See Cal. Gov’t Code § 12926.1(d).

For example, in one case, Moore v. Regents of Univ. of Cal,. 248 Cal.App.4th 216 (2016), an employee had a heart condition and wore a “LifeVest” to work that served as an external defibrillator. While she assured her employer that she would be able to carry out her job duties, in response, her employer stated that she was a “liability to the department.” Thereafter, her employer terminated her employment. The Court found that the employer’s “liability to the department” statement could be viewed as evidence of discriminatory animus of a perceived disability.

Moreover, in another case, Soria v. Univision Radio L. A., Inc., 5 Cal.App.5th 570 (2016), an employee had a tumor that was ultimately determined to be malignant. It was undisputed that the tumor did not interfere with her ability to perform her job duties. However, she was eventually terminated. The Court found that the employee still qualified as disabled because when she was terminated, her tumor had the potential to be or become malignant or could continue to grow to limit a major life activity. The Court reasoned: “The Legislature intended to protect employees from adverse employment action by employers concerned about what may happen in the future.”

If you believe your employer is taking an adverse employment action against you because of a potential or perceived disability please feel free to call the experienced workers’ rights attorneys at Hunter Pyle Law, and to make use of our free and confidential initial intake process.  We can be reached at (510) 444-4400, or at inquire@hunterpylelaw.com.

California Law Protects Workers Who Are Associated With a Disabled Person

California law prohibits an employer from taking an adverse action against an employee based on the employee’s association with a disabled person. See Cal. Gov’t Code § 12926(o). This is referred to as an “associational disability” claim.

To prove an associational disability claim, an employee must prove that: (1) the “disability” from which they suffer is their association with a disabled person; (2) they were otherwise qualified to do the job without reasonable accommodation; and (3) their association with a disabled person was a substantial motivating factor for the employer’s adverse employment action.

Courts recognize at least three types of disability-based associational discrimination. These are sometimes referred to as (1) “expense”; (2) “disability by association”; and (3) “distraction.” Some examples are as follows:

• “Expense”: a spouse has a disability that is costly to the employer because the spouse is covered by the company’s health plan;
• “Disability by association”: the employee’s homosexual companion is infected with HIV and the employer fears that the employee may also have become infected, through sexual contact with the companion;
• “Disability by association”: one of the employee’s blood relatives has a disabling ailment that has a genetic component and the employee is likely to develop the disability as well (maybe the relative is an identical twin);
• “Distraction”: the employee is somewhat inattentive at work because his spouse or child has a disability that requires his attention, yet not so inattentive that to perform to his employer’s satisfaction he would need an accommodation, perhaps by being allowed to work shorter hours.”

In one case, Castro–Ramirez v. Dependable Highway Express, Inc., 2 Cal.App.5th 1028, 1044 (2007), an employee administered daily dialysis for his son. The employee’s new supervisor suddenly changed his work schedule so that he could not be home at night to administer the dialysis. When the employee refused to work the night shift, his employer terminated him. The court found that these facts could establish an illegal termination if the employee’s association with his disabled son was a substantial motivating factor for terminating him.

In another case, Rope v. Auto–Chlor System of Washington, Inc., 220 Cal.App.4th 635, 656–657 (2013), an employee requested a leave of absence from work to donate his kidney to his sister. The employee asked his employer to approve an extended leave of absence and pay him pursuant to a newly enacted law. His employer then terminated him two days before that law went into effect. The Court found these circumstances to be a “reasonable inference” that his sister’s disability was a substantial factor motivating the employer’s decision to terminate the employee.

Associational disability claims are not limited to the examples above and courts review these claims on a fact-specific basis.

If you believe your employer has taken an adverse employment action against you because of your association with someone who has a disability please feel free to call the attorneys at Hunter Pyle Law, and to make use of our free and confidential initial intake process.  We can be reached at (510) 444-4400, or at inquire@hunterpylelaw.com.

What is a Reasonable Accommodation under California Law?

Under California law an employer must make reasonable accommodations for the known disability of an employee or applicant. Cal. Gov’t Code §12940(m); Dep’t of Fair Emp. & Hous. v. Lucent Technologies, Inc., 642 F.3d 728, 743 (9th Cir. 2011). A reasonable accommodation under the Fair Employment and Housing Act (“FEHA”) is “a modification or adjustment to the workplace that enables the employee to perform the essential functions of the job held or desired.” Nadaf-Rahrov v. Neiman Marcus Group, Inc., 166 Cal. App. 4^th 952, 974 (2008).

Employers are required to make a reasonable accommodation for the “known physical or mental disability of an applicant or employee” unless doing so would produce an undue hardship to the employer’s operation. Cal. Gov’t Code § 12940 (m)(1). “Undue hardship means an action requiring significant difficulty or expense, when considered in light of the following factors: (1) The nature and cost of the accommodation needed. (2) The overall financial resources of the facilities involved in the provision of the reasonable accommodations, the number of persons employed at the facility, and the effect on expenses and resources or the impact otherwise of these accommodations upon the operation of the facility. (3) The overall financial resources of the covered entity, the overall size of the business of a covered entity with respect to the number of employees, and the number, type, and location of its facilities. (4) The type of operations, including the composition, structure, and functions of the workforce of the entity. (5) The geographic separateness or administrative or fiscal relationship of the facility or facilities.” Atkins v. City of L.A., 8 Cal. App. 5th 696, 733 (2017) (citing Cal. Gov’t Code § 12926(u)).

What does reasonable accommodation mean, in practice? The FEHA provides specific examples of possible reasonable accommodations, including the following:

(1) Making existing facilities used by employees readily accessible to, and usable by, individuals with disabilities.

(2) 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’t Code § 12926(p).

The California Code of Regulations (“CCR”) provides a list of possible accommodations, including reasonable leaves of absence and reassignment to an alternate, temporary or vacant position in certain circumstances. Cal. Code Regs. tit. 2, § 11068(c)-(d).

In sum, there are many forms of reasonable accommodation and employers must make an effort to explore different alternative forms of reasonable accommodation. The failure to provide reasonable accommodation is common across different industries.

The workers’ rights attorneys at Hunter Pyle Law have handled failure to provide reasonable accommodation cases throughout California. If you have questions about your rights in the workplace, please feel free to contact us in order to utilize our free and confidential intake process. We can be reached at inquire@hunterpylelaw.com or at (510) 444-4400.

Employers Can Deny Disability Accommodations if They Can Prove Undue Hardship

In California, employers are required to provide reasonable accommodations for applicants or employees with physical or mental disabilities.[1] However, an employer does not have to provide accommodations if those accommodations create an “undue hardship” for the employer.[2] California law defines undue hardship as an “action requiring significant difficulty or expense.”[3]

When deciding whether a potential accommodation would create an undue hardship for the employer, courts consider the five factors laid out in the Fair Employment and Housing Act:

(1) The nature and cost of the accommodation;
(2) The finances of the facilities involved in the potential accommodation, the number of employees at the facility, and the impact of the potential accommodation on the facility;
(3) The overall finances of the employer, the overall number of employees, and various factors regarding its facilities;
(4) The employer’s operations; and
(5) The location of and relationship between facilities.[4]

In Atkins v. City of Los Angeles, the Second District Court of Appeal held that the City of Los Angeles failed to demonstrate that reassigning five injured recruit police officers to light-duty administrative work would cause the city undue hardship.[5] The city argued that keeping recruits on light-duty would have caused undue hardship because the recruits doing light-duty work were holding onto salaried positions that were intended for officers that would go out on the street within six months of entering the police academy.

The Atkins court was unpersuaded because the city did not offer any evidence to show that the expense of hiring additional recruits would have been “too great in relation to the city’s financial health” or that the city could not have met its public safety needs if plaintiffs remained in the light-duty program or if the city could not have hired additional recruits.[6] The court clarified that the employer must do more than simply assert it has economic reasons to reject a plaintiff’s proposed reassignment to demonstrate undue hardship. The employer must also show why and how those economic reasons would affect its ability to provide a particular accommodation.[7]

There is no single formula for determining whether a requested accommodation will result in undue hardship. Whether a particular accommodation will create an undue hardship for an employer is determined on a case-by-case basis and is “a multi-faceted, fact-intensive inquiry.”[8] Ultimately, the employer has the burden of demonstrating that an otherwise reasonable accommodation would result in an undue hardship on the employer.[9]

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.

References

[1] Gov. Code § 12940, subd. (m)(1).

[2] Gov. Code § 12940, subd. (m)(1).

[3] Gov. Code §12926, subd. (u).

[4] Gov. Code §12926, subd. (u).

[5] Atkins v. City of Los Angeles (2017) 8 Cal.App.5th 696, 732, as modified on denial of reh’g (Mar. 13, 2017). 

[6] Id. at 735.

[7] Id. at 734.

[8] Id. at 733.

[9] Id., citing Wallace v. County of Stanislaus (2016) 245 Cal.App.4th 109, 126–127; Hastings v. Department of Corrections (2003) 110 Cal.App.4th 963, 972.

Disability Harassment is Illegal under California Law

Under California’s Fair Employment and Housing Act (“FEHA”), it is an unlawful for an employer or any other person to harass an employee due to their physical disability, mental disability, or medical condition.[1] Unlike claims for discrimination, liability for harassment applies to “any person” and thus extends to individuals, including individual supervisory employees.[2]

In order for harassment to be actionable under the FEHA, the conduct must be “sufficiently severe or pervasive to alter the conditions of the victim’s employment and create an abusive working environment.”[3] Notably, the conduct need only be severe or pervasive.[4] The words “severe” and “pervasive” have no peculiar meanings under the law. The adjective “severe” is defined as “strongly critical and condemnatory” or “inflicting pain or distress.”[5] The verb “pervade” is defined as “to become diffused throughout every part of.”[6]

As to whether the alleged conduct is sufficiently severe or pervasive, a jury should consider the totality of circumstances.[7] The relevant jury instruction identifies the following factors that may be considered, among others: “(a) The nature of the conduct; (b) How often, and over what period of time, the conduct occurred; (c) The circumstances under which the conduct occurred; (d) Whether the conduct was physically threatening or humiliating; and (e) The extent to which the conduct unreasonably interfered with an employee’s work performance.”[8]

In Caldera v. Department of Corrections and Rehabilitation, the court affirmed a jury verdict in favor of the plaintiff on a claim for disability harassment.[9] The plaintiff alleged that he was mocked for his stutter multiple times in front of others.[10] To make matters worse, the harasser’s conduct had been broadcast over the prison’s radio system, and heard by about 50 employees.[11] Other incidents of harassment had occurred in front of the plaintiff’s co-workers.[12] Additionally, the plaintiff’s psychologist had testified that the harassment had caused the plaintiff to experience psychological disorders.[13] This evidence was more than enough to support the jury’s determination that the harassing conduct had been both severe and pervasive, although either would have been sufficient.[14]

[1] Cal. Gov’t Code § 12940(j)(1).

[2] Janken v. GM Hughes Electronics, 46 Cal.App.4th 55, 65 (1996).

[3] Nazir v. United Airlines, Inc., 178 Cal.App.4th 243, 263-264 (2009).

[4] Ramirez v. Wong,188 Cal.App.4th 1480, 1488 (2010).

[5] Webster’s Collegiate Dictionary (11th ed. 2007) p. 1140, col. 2.

[6] Id. at p. 925, col. 2.

[7] Fisher v. San Pedro Peninsula Hosp., 214 Cal.App.3d 590, 609-610 (1989).

[8] CACI No. 2524.

[9] Caldera v. Dep’t of Corr. & Rehab., 25 Cal.App.5th 31, 38–43 (2018).

[10] Id. at 34.

[11] Id. at 35.

[12] See id. at 34-36.

[13] Id. at 35.

[14] Id. at 39.

Your Rights at Work under California Disability Law

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] (more…)

The EEOC’s Guidelines on an Employer’s Duty to Provide Reasonable Accommodation

Under Title I of the Americans with Disabilities Act (“ADA”), individuals with disabilities are entitled to changes in the work environment, also known as “reasonable accommodations,” that allow them to enjoy the same opportunities in the workplace as individuals without disabilities.  The Equal Employment Opportunity Commission (“EEOC”) has issued enforcement guidance on reasonable accommodations under the ADA in order to address the rights and responsibilities of employers and individuals with disabilities regarding reasonable accommodations.  Highlights from the guide are set forth below. 

Employers are under a statutory duty to provide a reasonable accommodation in order to remove barriers that could prevent individuals with disabilities from performing jobs they might otherwise be able to do. These barriers might be physical or procedural.  However, an employer does not have to provide personal use items that an employee needs both on and off the job as a reasonable accommodation.  Examples of this include wheelchairs and hearing aids.   

Employers must provide accommodations whether employees with disabilities work part-time, or are considered probationary.  

There are three types of reasonable accommodations under the ADA: 

1. Modifications to the job application process that allow qualified applicants with disabilities to be considered for a position; 
2. Adjustments to the workplace or environment that allows an individual with a disability to perform the essential functions of a position; and 
3. Modifications that permit an employee to enjoy the same benefits and privileges of employment as individuals without disabilities.  

Examples of accommodations could include making facilities accessible; restructuring jobs; modifying schedules, work equipment or policies; or reassigning an employee to a vacant position. The important consideration is that the accommodation enables the individual with a disability to perform the essential functions of a job.  

An employer is excused from providing a reasonable accommodation only if it can demonstrate that such a change would cause “undue hardship.”  Undue hardship is generally characterized by excessive expense or significant difficulty or disruption to the employer.  This must be evaluated on a case-by-case basis.   

When asking for a reasonable accommodation, an employee must inform his or her employer about the need for an adjustment or change to the workplace and state that it is due to a medical condition. Simply requesting a new chair because it is “not comfortable” would not constitute a request for a reasonable accommodation; instead, the employee would need to link the need for a new chair to a medical condition, such as chronic back pain.  These requests can either be oral or written. 

Another individual, such as a family member or healthcare practitioner, can also request an accommodation on behalf of an employee with a disability.   

After a request for an accommodation is made, an employer is then entitled to ask questions and explore solutions.  Under the ADA, the employer can ask about the nature of the disability and functional limitations in order to survey and identify an effective accommodation.  While not required to, the employer has the option of requiring documentation that its employee has an ADA disability, and that the disability necessitates an accommodation.  However, the scope of an employer’s inquiries is limited to this, and cannot, for example, require providing complete medical records.  An employer can also ask a worker requesting an accommodation to sign a limited release allowing the employer to submit a list of specific questions to a medical provider. 

The employee can obtain the requested information from his or her health professional of choice.  However, if that healthcare provider is unable to substantiate the existence of an ADA disability and to verify the need for an accommodation, the employer should first state that the information is insufficient and allow the employee to obtain a compliant note. If this fails, the employer can thereafter ask the employee to submit to a medical examination conducted by the employer’s health professional, but the examination is limited to establishing the existence of the disability and the functional limitations that would require reasonable accommodations. The employer would also have to pay any exam it orders from a provider it designates.  

Employers are prohibited from requesting any documentation if the employee’s disability and need for an accommodation is obvious or 2) the individual has provided sufficient information to demonstrate that he or she has an ADA disability and requires a reasonable accommodation.  

Some employers do not require medical notes.  In this situation, the employee should be able to describe what situations or problems are creating barriers.  Discussing and exploring potential reasonable accommodations is referred to as “engaging in the interactive process.”  During this process, the employer has the prerogative of choosing the accommodation, as long as it is effective.   

Once an employee requests an accommodation, the employer must respond expeditiously.  Ignoring a request, and unnecessarily delaying a response may result in a violation of the ADA.  If the employee needs a reasonable accommodation to perform an essential function and the employee refuses an effective accommodation, he or she may not be qualified to stay in the job.  

Disabled Prison Guard Wins his Third Appeal Against the California Department of Corrections and Rehabilitation

Courts can award attorneys’ fees to the prevailing plaintiff in a discrimination or harassment claim brought under the Fair Employment and Housing Act (FEHA).  These attorney fee awards are designed to incentivize and reward a plaintiff’s counsel for litigating a civil rights case that is generally taken on a contingency fee basis and therefore has inherent risks.  Trial courts first calculate the lodestar amount, which is the product of the hours spent and the prevailing hourly rate of attorneys in the community conducting similar non-contingent litigation.  Then courts can increase this amount by adding a multiplier or increasing the lodestar amount by looking at various factors, such as the risk of non-payment, the public interest in advancing civil rights cases, the complexity of the issues involved, and the skill of the attorneys.  (more…)

Court of Appeal Rules in Favor of Gay CHP Veteran Suing for Sexual Orientation Discrimination

An openly gay California Highway Patrol (CHP) officer, Jay Brome, brought suit against his employer after enduring twenty years of harassment and discrimination.  The trial court dismissed his claims on the grounds that they were not filed within the statute of limitations.  The California Court of Appeal for the First District reversed the trial court’s ruling in a unanimous opinion, holding that equitable tolling could extend Mr. Brome’s statute of limitations.  (Brome v. California Highway Patrol, A154612, filed January 28, 2020.) (more…)