Articles Posted in Disability Discrimination

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My experience suggest that one of the reason for disability discrimination and failure to comply with disability laws in public / government agencies is the ignorance of disability laws and not understanding the obligations of the employer toward disabled workers among the managers and human resources personnel in these agencies.

Some of the managers that make critical decision of how to reasonably accommodate and employee and what constitutes an effective, reasonable accommodations have very little or no background or training in either human resources or disability laws. Many supervisors lack basic understanding of what qualifies as disability at workplace under ADA or FEHA. Some of the managers in state, county and municipal agencies get very high up in the ranks due to good performance and length of service alone, as usually there is no requirement to get high education in the public sector employment in order to continue to be promoted. While allowing employees from all backgrounds and all walks of life to have opportunities in high management, not requiring additional education or training when it comes to human resources and basic laws that govern employee’s right and duties leads to many employment and wrongful termination lawsuits against these agencies. Most often we hear about lawsuits against Department of Corrections and Department of Health and Human Services.

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One of the common challenges in proving violation of disability rights in a wrongful termination case is showing that the employer knew that the employee had a qualifying condition or suffered an injury shortly before being terminated, and thus his or her termination was discriminatory or retaliatory.

In the absence of e-mails or faxes where the employee puts the employer on notice of his condition and the need for medical leave or accommodations to the medical condition, phone records may be a persuasive evidence in proving that the employee was likely retaliated after suffering an injury and successfully negotiating a settlement.

Suppose you suffer an on the job injury while operating an industrial equipment. You call your boss and/or human resources manager to let them know that you were injured, that you need to leave to seek medical attention, and you might need time off. They agree with you and informally allow you to leave work to take care of your injury. A few days later you are terminated for insubordination, poor performance, or some other abstract reason. When you argue in a legal action in court or in front of EEOC/DFEH that you were terminated because of your injury, your supervisor says that he never heard from you and did not know you suffered an injury before deciding to terminate you or that he didn’t even speak with you after you were injured. This is where your phone records reflecting at least that you made those calls after your injury can be extremely helpful. If you can, get them right away. If it has been a while since the subject day of when these important phone calls took place, subpoena those records from your phone provider or encourage your attorney to do the same.

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Asthma and sensitivity to tobacco smoke and other pollutants are conditions that have been recognized by courts as a protected disability at workplace, entitling the workers suffering from those conditions to a reasonable accommodation.
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In County of Fresno v. Fair Employment & Housing Commission (1991), the employer (the county) argued that hypersensitivity to smoke is either a non-handicapping respiratory disorder, not covered by the California disability laws, or an “environmental limitation” rather than a physical limitation. The court has rejected both arguments, finding that because of the respiratory disorder, exposure to tobacco smoke produced by other employees substantially limited the Plaintiff’s ability to breathe, rendering the Plaintiff “handicapped” and covered by ADA (Americans with Disabilities Act) / FEHA (Fair Employment and Housing Act). In that case, the employer actually attempted to reasonably accommodate the plaintiff, and the following actions were taken: smokers used desktop air filtration machines, employees kept windows open, management separated Plaintiff’s desk from the desks of smokers, Plaintiff was offered an alternative position in another department, where smoking was not permitted. Because all of the above accommodations proved to be either futile or ineffective, the court still found that the employer failed to reasonably accommodate Plaintiff.

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Yesterday, I met with a client – a very pleasant lady in her mid thirties who was forced to quit from the SFMOMA (San Francisco Museum of Modern Arts) due to what appeared to be egregious violations of California disability laws at workplace. The former SFMOMA employee has been suffering from fairly severe scoliosis in her back and accompanying PTSD for several years. She submitted doctors’ letters to her employer requesting the museum to provide her with reasonable accommodations, but they systematically ignored it for several years, openly accusing the employee of making her symptoms up and also telling her that unless she is crippled or has a terminal illness, she is not considered disabled and will not receive any special treatment. The accommodations requested were minimal – to allow the employee to take a few hours off per month to see her doctor in order to relief her back pain symptoms.

Out of curiosity, I asked my client to stand up and show me the curvature of her back, and I was surprised to find how noticeable the degenerative changes in her back were. I wonder if her employer ever bothered to look at her back…

This unprecedented ignorance of the disability laws at workplace that employs several hundreds of employees and that has been a distinguished establishment with national recognition for many years is unacceptable and should be changed. I am not sure if it’s a wrong termination lawsuit or some involvement from the management that will trigger the change in the human resources management in that museum, but it seems to me that it’s only a matter of time until such systematic disregard for disability laws will lead to significant liability on the part of the San Francisco’s premier museum.

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Employers often argue that because a worker’s health condition is temporary and passing, the condition can’t possibly be considered a disability under California Fair Employment and Housing Act (FEHA). The assume, relying mostly on intuition, that the concept of disability necessarily entails some kind of permanent impairment.

The courts, however, disagree with this argument. In Diaz v. Federal Express Corp.(2005) the court specifically discussed the issue of temporary physical and mental conditions. In that case, Federal Express argued that because the Claimant severe anxiety attacks were only temporary and lasted just over one year, that condition couldn’t possibly fall within the protection of FEHA. The federal court rejected that argument. The court noted that the reading of the law itself suggests that a temporary condition might be a protected disability, entitling an employee to reasonable accommodations. The statute defines a disabled person as one regarded as having or having had a condition that makes achievement of a major life activity difficult, or the one that has not present disabling effect, but that may become a disability in the future.

disability discrimination California employment lawIt is unclear what weight, if any, should be give to how long a condition lasts in determining its disabling effect as the relevant statute Cal. Gov. Code section 12926.1(c) is noticeable silent on that issue. Thus, one way to interpret the law is to treat the duration of the condition as only mildly relevant in simply showing whether how serious the condition is, as one might argue that part of being “serious” is having a lasting effect on a personal physical or mental health.

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FEHA (Fair Employment and Housing Act) prohibits disability discrimination and pregnancy based discrimination in California. To prove a wrongful termination claim based on pregnancy discrimination and failure to provide reasonable accommodations to a pregnant employee at workplace, first she has to prove that her condition constitutes disability within the meaning of the statute Cal. Gov. Code section 12940(m) which prohibits employment discrimination based on actual or perceived disability, as normal pregnancy itself is not considered disability entitling an employee to special accommodations.

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Under California Fair Employment and Housing Act (FEHA) physical disability is defined as a condition that limits a major life activity. Thus, the female worker must show that a condition arising out of her pregnancy limited one or more of her major life conditions. An employee must specific state which of her daily functions was impaired by the condition arising out of pregnancy and what exactly she was not able to do in a course of her daily life that she would have otherwise been able to do.

In one case, the court rejected the employee’s argument that her morning sickness during pregnancy constituted disability entitling her to the protection of pregnancy and disability discrimination laws. The court stated that according to Fair Employment and Housing Commission regulation 7291.2(g) a woman is “considered to be ‘disabled by pregnancy’ if she is suffering from severe ‘morning sickness’.”

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Once an employer becomes aware of the need for accommodation for a qualifying disabled employee, that employer has a mandatory obligation under the law to engage in an interactive process with the employee to identify and implement appropriate reasonable accommodations. An appropriate reasonable accommodation must be effective in enabling the employee to perform the duties of the position.

The interactive process requires communication and good-faith exploration of possible accommodations between employers and individual employees, and neither side can delay or obstruct the process. A party or an employer that obstructs or delays an interactive process may be found liable for acting in bad faith.

san francisco bay area employment law wrongful terminationThe duty to accommodate disability is a continuing duty that is not exhausted by one effort. The EEOC Enforcement Guidance notes that an employer must consider each request for reasonable accommodation, and that if a reasonable accommodation turns out to be ineffective and the employee with disability remains unable to perform an essential function, the employer must consider whether there would be an alternative reasonable accommodation that would not pose an undue hardship. This rule fosters the framework of cooperative problem solving contemplated by the law, by encouraging employers to seek to find accommodations that really work, while preventing employees from requesting the most drastic and burdensome accommodations possible.

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It is not uncommon for an employer to terminate an employee because of his or her disability in violation of FEHA and other anti-discrimination laws, and attempt to mask disability discrimination and failure to provide reasonable accommodations by telling an employee while terminating him that he can apply for other jobs in the company that might suit him. This move seems to be particularly obvious when the employer tells the employee that he should apply for any job externally, like any other outside applicant, not having any priority in hiring or consideration for any position.

The California courts are unimpressed with this move to go around the law protecting disabled workers. The Ninth Circuit specifically held in Barnett v. U.S. Air. Inc. (9th Cir. 2000) 228 F.3d 1105 that an offer to bid on other jobs, “a right the employee already had,” did not represent reasonable accommodations as required by law. Reassignment involves more than a mere opportunity for disabled employees to compete. Quoting EEOC guidelines, the court concluded that reassignment within the meaning of reasonable accommodations means that the employee gets the vacant position if he/she is qualified for it. Otherwise, reassignment would be of little value and would not be implemented as Congresses intended it when it enacted disability anti-discrimination laws.

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The California Supreme Court held that high blood pressure (hypertension) may be a protected disability at workplace within the meaning of Fair Employment and Housing Act (FEHA) in American National Insurance Co. v. Fair Employment and Housing Commission 32 Cal.3d 603 (1982). In that case, an insurance company terminated a sale and debit agent because of his elevated blood pressure. The Supreme Court held that high blood pressure may be a “physical handicap” under the FEHA, since the statutory definition of the protected disability under Cal. Gov. Code section 12926(h) permits consideration of all handicaps that are physical, and not only those are are presently disabling.

In explaining section 12926(h), the court resorted to the literal definition of the term “handicap” as defined in Webster’s dictionary: “physical handicap includes …, or any other health impairment which requires special education or related services. The Court further emphasized that the law protecting workers from being discriminated based on their disability clearly was designed to prevent employers from acting arbitrarily against physical condition that, whether actually or potentially handicapping, may present no current job disability or job-related health risk.

Thus, the mere fact that a worker isn’t constantly experiencing the symptoms of high-blood pressure, doesn’t mean that he is not disabled within the meaning of FEHA, as he or she does face an actual risk of experiencing those disabling symptoms.

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The second district made an important distinction between disability discrimination and failure to provide reasonable accommodations in Jensen v. Wells Fargo Bank 85 Cal.App.4th 245 (2000). In that decision, the court noted that the elements of a failure to accommodate claim are similar to the elements of disability discrimination under under California Gov. Code section 12940(a), but there are several important differences. For the purposes of the failure to accommodate claim, the employee does not need to show that he is able to perform the essential functions of his present job (like it is necessary to show in order to prove discrimination), but only that he or she is able to perform the duties of the job which he or she is seeking to be reassigned to.

Even more importantly, in claims for failure to accommodate, it does not matter whether the employee was terminated, suspended or otherwise disciplined in retaliation for his disability (like it is required in discrimination claims). The employer’s mere failure to reasonable accommodate a disabled individual is a violation of the statute in and of itself. Cal.Gov. Code section 12940(k).

In other words, prevailing on a disability discrimination claim is harder than proving failure to accommodate, because it requires showing that the employee suffered an adverse employment action, and that there is a causal link between the disability/medical condition and the adverse employment action, while no adverse employment action needs to be shown in order to prevail on a separate claim for failure to provide reasonable accommodations to a disabled worker.

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