Disability Discrimination and Reasonable Accommodation under the FEHA

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Disability Discrimination and Reasonable
Accommodation under the FEHA

• Phyllis W. Cheng Directors
• California Department of Fair Employment and
  Housing
• www.dfeh.ca.gov

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oVERVIEW

• Introduction.
• Disability discrimination under the FEHA.
• Comparing FEHA, ADA and ADAAA.
• New amendments to the FEHA disability
  regulations.
• Interactive process.
• Reasonable accommodation.
• Potential defenses and limits to liability.
• Best practices.

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Introduction

• The DFEHs civil rights mission.
• Statutes enforced
• Fair Employment and Housing Act (FEHA) (Gov.
  Code, 12900 et seq.).
• Unruh Civil Rights Act (Civ. Code, 51 et seq.).
• Ralph Civil Rights Act (Civ. Code, 51.7).
• Disabled Persons Act (Civil Code, 54 et seq.).
• Jurisdiction.

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2011 DFEH Complaints Filed by Bases
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2011 DFEH Accusations Issued
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FEHA DISABILITY DISCRIMINATION

• FEHA protects
• Applicants.
• Employees.
• Contractors.
• From disability discrimination in
• Employment.
• Training program leading to employment.
• Compensation, terms, conditions, privileges of
  employment.
• (Gov. Code, 12940, subd. (a).)

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FEHA DISABILITY DEFINED

• Physical or mental impairment that limits a
  major life activity
• Record of such an impairment or
• Regarded as having or having had such an
  impairment, or is regarded or treated as having
  an impairment that has no present disabling
  effect but might become a future disability.
• (Gov. Code,  12926, subds. (i), (k) (l),
  12926.1, subds. (c) (d).)
• Definitions of physical and mental disabilities
  are to be broadly construed. (Gov. Code,
   12926.1, subd. (b).)

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WHAT IS NOT A DISABILITY?

• Current illegal drug use.
• History of criminal behavior.
• Compulsive gambling.
• Sexual behavior disorders or a history of sex
  offenses.
• Kleptomania.
• Pyromania.

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MITIGATION

• Mitigating measures are not considered under the
  FEHA in determining whether an individual has an
  impairment that limits a major life activity
  unless the mitigating measure itself limits a
  major life activity. (Gov. Code, 12926,
  subds. (i)(1)(A) (l)(1)(B), 12926.1, subd.
  (c).)

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Limitation

• FEHA requires that the physical or mental
  condition limits one or more major life
  activities, making the achievement of the major
  life activity difficult. (Gov. Code, 12926,
  subds. (j) (l), 12926.1, subd. (d).)

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MAJOR LIFE ACTIVITY

• Major life activities are to be broadly
  construed and include physical, mental, and
  social activities and working. (Gov. Code,
  12926, subds. (j) (1), 12926.1.)
• An employees impairment need affect only a
  particular job, not a class or broad range of
  employment, to limit the major life activity of
  working. (Gov. Code, 12926.1, subd. (d).)

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Episodic conditions

• Specifically states that chronic or episodic
  conditions are covered as disabilities. (Gov.
  Code,  12926.1, subd. (c).)

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Regarded as having disability

• FEHA still focuses on an employers perception.
  An individual is protected if s/he is regarded
  or treated as having or having had any physical
  or mental condition that
• (1) makes achievement of a major life activity
  difficult or
• (2) has no present disabling effect but may
  become a future qualifying physical or mental
  condition. (Gov. Code,  12926, subds.
  (j)(4)-(5) (l)(4)-(5).)
• There is no durational limit to be a disability
  in FEHA. Note that FEHA provides that when the
  ADAs definition of disability

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construction

• FEHA provides protections independent of ADA,
  containing broad definitions of what is
  considered a disability. (Gov. Code, 12926.1.)

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NEW FEHC Disability Regulations

• Define mental and physical disability broadly to
  include any disorder that affects a persons
  mental or bodily functions and limits a major
  life activity.
• Limiting a major life activity means the
  condition makes achieving a major life activity
  difficult.
• New examples of disabilities include autism
  spectrum disorders, clinical depression,
  post-traumatic stress disorder, obsessive
  compulsive disorder, cerebral palsy, HIV/AIDS,
  seizure disorder, multiple sclerosis, and heart
  disease.
• Define and provide examples of perceived
  disability, medical condition, and genetic
  characteristics.
• Provide standards for determining when a job
  function is essential, as well as examples of
  potential reasonable accommodations (e.g.,
  bringing assistive animals to work, altering when
  and how essential functions are performed, making
  exception to company policy, and permitting
  employees to work from home.)
• Provide that disability can be proven if one
  factor influenced employer to deny a employment
  benefit.
• Assistive animals defined.

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Intellectual Disability

• SB 1381(Pavley) Mental retardation.
• Changes mental retardation to intellectual
  disability among the enumerated definitions of
  mental disability.
• It is the intent of the Legislature that the bill
  not be construed to change the coverage,
  eligibility, rights, responsibilities, or
  substantive definitions.

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NEW FEHC Pregnancy Regulations

• Expand definition of disabled by pregnancy
  under non-exclusive list of medical conditions
  related to pregnancy
• Clarify definition of four months of leave to
  mean 17 1/3 weeks
• Clarify employer responsibilities regarding
  reasonable accommodations and transfers
• Add prohibitions against perceived pregnancy
  discrimination or harassment
• Identify new notices required to be posted and
  given to employees affected by pregnancy for
  employers with less than 50 employees (Notice A),
  and employers with 50 or more employees (Notice
  B)
• Require employers, who choose to require medical
  certification the employee, to notify the
  employee in writing and provide a form for the
  medical provider to complete. Employers may
  develop their own form or use the template in the
  regulation.

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Keys to the FEHAs Broad Disability Protections

• Interactive Process An employer is required to
  engage in a good faith, interactive process to
  determine an appropriate reasonable
  accommodation. Failing to do so constitutes an
  independent FEHA violation.

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• Elements of Disability Discrimination

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Disability Discrimination Elements

• Employees actual or perceived condition
  qualifies as a physical or mental disability.
• Adverse action against the employee.
• Employee is otherwise qualified to perform the
  essential functions of the job.
• Causal link The employee was subjected to the
  adverse action because of his or her disability.

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Hypothetical 1

• A long time IT worker, who had not previously
  notified her employer that she was disabled,
  informs her supervisor that she suffers from
  carpal tunnel syndrome and needs an accommodation
  to continue working. Her supervisor is surprised
  since she had never reported this disability
  before.
• Does the employee have a disability under the
  FEHA?

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Reasonable Accommodation Discrimination Elements

• Employees actual or perceived condition
  qualifies as a physical or mental disability.
• Employee is capable of performing the essential
  functions of the job with or without a reasonable
  accommodation.
• Reasonable accommodation requirement is
  triggered. This is the notice requirement.
• Adverse action Reasonable accommodation not
  provided by employer.

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REASONABLE ACCOMMODATION Exceptions

• Employee must be able to perform essential job
  functions.
• Fundamental job duties of the employment
  position.
• Employer must provide accommodation unless it can
  demonstrate undue hardship.
• Undue hardship is an action requiring
  significant difficulty or expense by an employer
  in providing an accommodation.
• Nature and net cost of the accommodation
• Overall financial resources and size of employer
• Employers type of operation and
• Geographic separateness of facility.

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Defenses

• Essential Functions An employer may, however,
  refuse to hire or may discharge an employee if,
  even with reasonable accommodations the employee,
  because of his or her disability, either is
  unable to perform the essential duties or cannot
  perform them without endangering the health or
  safety of the employee or others. (Gov. Code,
  12940, subd. (a)(1)-(2).)
• Undue Hardship The FEHA provides that an
  employer must provide reasonable accommodation
  for the known physical or mental disability of an
  applicant or employee unless to do so would
  create undue hardship for the employer.

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What Accommodations are Reasonable under the
FEHA?

• Job restructuring or re-allocation of duties.
• Adjustment of work hours.
• Providing tools, equipment, supplies, etc..
• Modifying policies.
• Leave of absence.
• Reassignment to vacant position. If reassignment
  is needed, the employer must take affirmative
  steps to determine whether a position is
  available the employers in the best position
  to know this information. (Spitzer v. Good Guys,
  Inc. (2000) 80 Cal.App.4th 1376, 1389.)

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Unreasonable Accommodations under the FEHA

• Create a new job.
• Move another employee.
• Promote the disabled employee.
• Violate another employees rights.
• Reassign the disabled employee to a position that
  is not funded and not vacant. (Raine v. City of
  Burbank (2006) 135 Cal.App.4th 1215, 1223.)

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The FEHAs Timely, Good Faith, Interactive
Process

• Timely Applies to both the employee and
  employer, neither can delay.
• Good Faith Direct communication between the
  employer and employee, with a willingness to
  exchange essential information.
• Interactive The employer consults with the
  employee to ascertain the precise job-related
  limitations, and how these limitations can be
  effectively overcome with a reasonable
  accommodation.

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What Would Trigger the FEHA Interactive Process?

• An employee directly asking for an accommodation
  (either orally or in writing).
• The employees representative asking on the
  employees behalf (such as the employees doctor,
  spouse or union rep.)
• Employee states hes having difficulty getting to
  work on time because of the medical treatment of
  his health condition.
• Employees spouse calls and tells employer that
  employee has had a medical emergency because of
  his cancer and needs to take five weeks off.
• Employees doctor sends a letter stating that
  employee cant lift more than 50 pounds.

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What Would Not Trigger the FEHA Interactive
Process?

• Employee mentions disability but does not inform
  employer of any specific limitation (and none is
  readily apparent to employer).
• Employee requests an accommodation but doesnt
  mention any disability (and employer has no
  reason to know of the disability) .
• Employee mentions inability to perform specific
  task, but does not request an accommodation or
  mention that inability is tied to a disability.
• Employee makes threats of violence against a
  supervisor or co-worker.

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Hypothetical 2

• An employee with a mental disability that the
  employer was unaware of sues his employer for
  disability discrimination because the employer
  never offered the employee an accommodation.
• Does the employee have a valid claim?

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Common Employer Reasonable Accommodation Mistakes

• Assuming workers compensation is the exclusive
  remedy for work related injuries. (City of
  Moorpark v. Superior Court (1998) 18 Cal.4th
  1143.)
• Following a 100 healthy rule before an
  employee can return to work.
• Failure to consider vacant positions.

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Common Employer Reasonable Accommodation Mistakes

• Claiming that an employee cannot perform the
  essential functions of the job when, in fact, the
  employee was performing the job either with or
  without an accommodation.
• Refusal to grant a reasonable accommodation due
  to an inflexible reliance on company rules.

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Common Employer Reasonable Accommodation Mistakes

• Asserting an essential functions defense based on
  a job description that does not accurately
  reflect the employees actual job.
• Asserting an essential functions defense without
  considering the ease of certain accommodations,
  such as assistance from co-workers or tools.

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Common Employer Reasonable Accommodation Mistakes

• Assuming workers compensation is the exclusive
  remedy for work related injuries. (City of
  Moorpark v. Superior Court (1998) 18 Cal.4th
  1143.)
• Following a 100 healthy rule before an
  employee can return to work.
• Failure to consider vacant positions.

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Common Employer Reasonable Accommodation Mistakes

• Claiming that an employee cannot perform the
  essential functions of the job when in fact, the
  employee was performing the job either with or
  without an accommodation.
• Refusal to grant a reasonable accommodation due
  to an inflexible reliance on company rules.

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Common Employer Reasonable Accommodation Mistakes

• Asserting an essential functions defense based on
  a job description that does not accurately
  reflect the employees actual job.
• Asserting an essential functions defense without
  considering the ease of certain accommodations,
  such as assistance from co-workers or tools.

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Hypothetical 3

• An employee of a Fortune 500 company notifies her
  supervisor that she suffers from a slipped disk
  in her back, and requests that she be provided a
  special chair to allow her to sit without pain.
  The employer refuses to provide the chair she
  requests, but tells her she can look through the
  companys storage and take any chair she finds.
• Has the employer discriminated based on
  disability?

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Best practices

• Review policies and procedures.
• Training.
• Hire the best person regardless of disability or
  perceived disability.
• Engage in the interactive process.
• Consider all reasonable accommodation options.

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www.dfeh.ca.gov contact.center_at_dfeh.ca.gov (800)
884-1684 Videophone [phone]