California Disability Discrimination: The ADA and FEHA

The law protects people with disabilities on the job.

The federal Americans with Disabilities Act (“ADA”) and California’s Fair Employment and Housing Act (“FEHA”) protect qualified people with disabilities but who can do the job. It requires employers to make reasonable accommodations (as defined below) to allow disabled people to perform a job’s essential functions. This is not a guarantee of a job for disabled people, but it is protection for those who can perform its essential functions from being discriminated against on the basis of their disability.

What duties do employers owe applicants and employees with disabilities?

Employers must make reasonable accommodations to enable an employee with a disability to perform a position’s essential functions.

A reasonable accommodation is an action that enables an employee with a disability to receive the same opportunities and benefits of employment as other employees. This may be fulfilled by making facilities readily accessible to disabled individuals, providing transfer or reassignment to a vacant position for which the disabled employee is qualified, providing part &endash;time or modified work schedules, or providing modified equipment or devices to accommodate a disabled employee. This is an ongoing duty and not a one-time effort.

However, the employer’s duty to accommodate has its limits. Accommodations must not impose an “undue hardship” on the operation of the employer’s business. The employee must prove that the accommodation is reasonable both in cost and benefit to the employer’s business.

Workplace Issues in Disability Discrimination

How do you prove a claim for disability discrimination?

Generally, three things must be proven for an individual to prevail under a disability discrimination claim:

  • A plaintiff must prove that one has a disability, and
  • A plaintiff must be a “qualified individual,” capable of performing the essential functions of a job either with or without reasonable accommodation, and
  • A plaintiff must have been unlawfully discriminated against because of his or her disability.


What constitutes a disability?

Under the ADA, to prove a disability, the following is required:

  • A physical or mental impairment or medical condition that substantially limits one or more major life activity (such as working or the ability to care for oneself), and
  • A record of such an impairment or being regarded as actually having such an impairment by an employer (also called, “regarded as” or “perceived” disability)


California’s disability law does not require, as the ADA does, that the impairment must “substantially limit” a major life activity.


What constitutes a “qualified individual?”

A “qualified individual” is one who, with or without reasonable accommodations, can perform the essential functions of the position that individual holds or desires.


Examples of disabilities.

Disabilities include cosmetic disfigurements; various physical impairments, including AIDS, cancer, asthma and other allergic reactions; mental impairments, including retardation, emotional disorders and mental illness, severe depression, and recovering addicts who remain sober. To constitute a disability, these impairments and conditions must substantially limit one or more of the individual’s major life activities.


Impairments that are not protected disabilities.

Homosexuality and bisexuality; sexual behavior disorders; compulsive gambling; and disorders resulting from current illegal use of drugs.


Proving discrimination.

There are a number of ways that an employee may prove employer disability discrimination. For instance, an employer may act directly, by openly discriminating against an employee’s medical condition (ie., making inappropriate comments openly about an employee’s HIV positive status) and thus, creating a hostile work environment for an employee. An employer may discriminate also by failing to make reasonable accommodations or by making improper preemployment inquires (other than those relating to the ability to perform job related functions) regarding an applicant’s disabilities.


Which employers are liable under the ADA and FEHA?

  • Under the federal ADA, an employer with 15 or more employees may be liable.
  • Under California’s FEHA, any person regularly employing five or more persons may be liable.


Remedies for an employee who has been discriminated against on the basis of disability.

A plaintiff alleging a violation of ADA may receive backpay, plus compensatory and punitive damages. Under FEHA, in private lawsuits, there is no limit on the amount of emotional distress damages that may be awarded, and unlimited punitive damages may be awarded.