It is a violation of both federal and state law for an employer to discriminate against an employee with a disability. The attorneys of Schwimer Weinstein have a successful history helping people recover damages from disability discrimination. Here’s what you should know about the protections and restrictions offered under federal and California state law.
The federal POV – The American with Disabilities Act (ADA)
This important act, which passed in 1990, protects victims of unfair employment practices, prohibiting discrimination on the job against workers who are often excluded from gainful employment simply because they are disabled. Under this law, it’s also illegal for an employer to discriminate even when determining promotions, compensation and job training.
Californian Law – More protection. Less restrictions
Each state protects disabled workers with its own anti-discrimination law.
In California it’s called the Fair Housing and Employment Act. As with age discrimination, this broadly written law offers disabled California workers even more protection than the ADA.
Some criteria for meeting the standard of a “disabled worker” is lower in the FEHA than that of the ADA. For example, California workers experiencing discrimination are covered by the FEHA whether or not they are substantially limited in a major life activity. Not so with the ADA.
And, unlike the ADA, the FEHA considers work a major life activity. So, if the employee’s disability limits his or her ability to perform at least one job, the qualifications of the California law have been met.
The FEHA is also less strict in its evaluation requirements. If an evaluation is required to determine the disability, the ADA requires you perform it in a “mitigated state,” which could lessen the disability. So imagine you’re trying to prove disability based on hearing loss. The ADA might require you wear a hearing aid during the audio test. The FEHA, however, doesn’t have a “mitigated state” provision. With the FEHA, discriminatory behavior against even the perception of a disability is illegal.
A key question is: Are you qualified to do the job?
Before an employee can receive protections under state and federal law, he or she must be able to perform the duties of the job position.
This prevents employees, whose disability actually keeps them from doing the job, from filing a discrimination lawsuit.
What happens if an employer doesn’t provide reasonable accommodation?
Under anti-discrimination laws, employers are often required to provide accommodation for specific categories of workers. When accommodation is not provided or is provided insufficiently, an employer could be in violation of the law.
To meet reasonable accommodation requirements under the law, and to help a disabled employee to perform duties more effectively, an employer might need to make changes to the workplace or to workplace policy. This includes providing handicap access, modifying job duties or decreasing workload.
In order to receive accommodations, however, a disabled employee must first request it. The requested accommodation must be reasonable and the employer has the right to refuse requests that would cause undue hardship to the business.
If you are a person with a disability and feel you’ve been discriminated against by your employer, please contact the experienced attorneys at Schwimer Weinstein. We will fight for your rights.
We can help. Contact Schwimer Weinstein for a free, no-obligation consultation.