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.


California Workplace Leave Rights: FMLA and CFRA – Taking Leave From Work

What laws govern leave?

Numerous laws provide leave rights. In California, there are two key statutes that govern leave: the Family and Medical Leave Act (“FMLA”) and the California Family Rights Act (“CFRA”). Each provides job security to employees who are absent from work.


How much leave time may an employee take?

Eligible employees are entitled to 12 work weeks of leave in a 12 month “leave year.” A “leave year” is defined, at an employer’s election, by any 12 month period or from the time FMLA or CFRA leave is first taken by an employee.


Is the leave paid or unpaid?

FMLA and CFRA leave are unpaid unless available paid time off is taken or disability benefits are available. However, beginning on July 1, 2004, an employee who suffers wage loss for taking leave may be entitled to partial compensation under the California Family Temporary Disability Insurance (“FTDI”), regardless of whether the employee qualifies for FMLA or CFRA leave.


Which employees are eligible for leave under FMLA and CFRA?

To be eligible for leave, an employee must meet all of the following:

  • Employee must be employed by employer for at least 12 months (consecutive or non consecutive) as of the date leave commences, and
  • Employee must have worked at least 1250 hours during the 12 month period preceding commencement of the leave, and
  • On the date leave notice is given, employee must be employed at a work site where employer employs at least 50 employees within a 75-mile radius.

California Pregnancy Discrimination Rights

Employers cannot discriminate against a pregnant employee in the state of California. This commonly occurs when an employer treats disabilities due to pregnancy distinct from and less beneficially than disabilities due to other medical conditions. This law requires that employers treat pregnant women the same as other employees for all employment purposes, including benefits such as disability and leave.

Pregnancy discrimination occurs in a variety of situations.

Leave rights. Employers must provide pregnancy leave. Disabilities due to pregnancy, childbirth, and related medical conditions must be treated the same as other disabilities.

Predetermined leave. Employer cannot force a woman to a pregnancy disability leave at a predetermined time and for a predetermined period without regard to the actual current disability.

Reinstatement. An employer must hold his or her pregnant employee’s position open in the same way that jobs are held open for other employees on leave. At the expiration of the pregnancy leave, the employee must be reinstated to her position.

What are pregnant women rights in California State?

As a part of Title VII, the following remedies are available for a PDA violation:

  • Backpay
  • Reinstatement or front pay
  • Injunctive relief
  • Reasonable attorney fees and court costs
  • Compensatory damages for pain and suffering
  • Punitive damages

California Law on Workplace Sexual Orientation Discrimination

What is Sexual Orientation?

Sexual orientation generally refers to a person who identifies as heterosexual, gay, lesbian, bisexual, or transgender/transsexual.

California law specifically protects heterosexuals, homosexuals (gays and lesbians), and bisexuals from sexual orientation discrimination. It further protects transsexuals and transgender persons from discrimination. Transsexuals and transgender persons are those who by their identity, appearance, and/or behavior appear to be of a different sex (meaning, male or female) or gender than at birth.

Federal and state laws differ on whether an employer may discriminate against employees or job applicants because of their sexual orientation or gender, but in California, the law is clear that it cannot be done.


What is Gender?

Gender has nothing to do with a person’s sexual orientation, but rather, it refers to the behavioral, cultural, or psychological traits typically associated with one sex. For example, when a person says that a woman is acting and dressing “too much like a man,” that person is referring to that woman’s gender. Gender is often hard to distinguish from sex and sexual orientation because of social and cultural expectations about how a man or woman “should” behave.


Sexual Orientation and Sexual Harassment

Although federal law may not protect an employee who has been discriminated against because he is gay, a gay employee may be able to bring a hostile environment sexual harassment or gender discrimination claim in lieu of a sexual orientation discrimination claim.

For instance, a court held that co-workers who repeatedly taunted a gay male employee for acting “like a woman” and referring to him as “her,” created a sexually hostile work environment. Thus, a gay man harassed as such would have a discrimination claim on the basis of sex under federal law.

In another California case, a man who was openly gay worked as a butler for MGM Grand Hotel. Because co-workers repeatedly grabbed him from behind, touched his body, grabbed his genitals, taunted him by calling him feminine names and endearments, and ridiculed him for walking in a feminine manner, the California Ninth Circuit held that the man had a sexual harassment claim and may also have sufficient gender discrimination claim, as well.


What is Gender Discrimination?

Any adverse employment action taken because an employer or co-worker believed that a male or female employee did not conform to a certain gender norm, constitutes gender discrimination and is actionable under both state and federal law.


What are some examples of gender discrimination?

  • A woman who is fired for “failing to act like a woman” has a right to bring a claim for gender discrimination.
  • Similarly, a man who is fired for “acting too feminine” has a right to bring a claim for gender discrimination.
  • Remedies for sexual orientation discrimination (in state court) and gender discrimination (in state and federal court)

Employees who are subject to unlawful termination and harassment may be liable to recover the following:

  • Past lost wages and other benefits
  • Future lost wages and other benefits
  • General damages, including emotional distress and pain and suffering
  • Punitive damages
  • Attorney’s fees
  • Injunctive relief

Advice for California Employees: What You Should Do If You Are Being Harassed or Discriminated Against

Some advice remains true for many workplace problems, including sexual harassment, hostile work environment, racial or sexual discrimination, and other forms of harassment and discrimination in the workplace. I am a California attorney, and some concepts seem to apply to all work situations.


Follow Your Company’s Human Resource Policies!

If you feel you are subject to workplace harassment or discrimination, do what your company tells you to do in such a situation. In other words, read your employer’s sexual harassment policies and racial discrimination policies, and do what they tell you.

In assessing these racial discrimination and sexual harassment cases, jurors want to see detailed policies on diversity, discrimination, and sexual harassment training as well as basic management techniques. The employees should be educated in these policies and they must be enforced fairly and consistently. Companies can have such policies in writing but do not follow them in practice. If this happens, it often will reflect poorly upon the company in court. Likewise, it may reflect poorly upon the employee if they fail to make use of the policies.

Besides juries, the courts want to see employees taking advantage of the employer’s anti-harassment and anti-discrimination policies. If you ignore these policies, the courts may cut your damages or wipe them out entirely.

Therefore, the victim of harassment discrimination in the workplace has the burden of making use of these policies and following the company’s procedures. Typically, these policies direct employees to complain immediately to the company’s human resources department, and thus you should report what you feel is wrong to human resources. When you make reports, be specific about what happened and be sure to include all conduct that you felt was objectionable.

If no written policies exist, complain to your immediate supervisor.


Take Notes of the Relevant Events, but only the Relevant Events!

While your memory might be clear now, when your case comes to court in two or three years the events will be much more difficult to recall. Cases may turn on the nuances of what someone did or said, and you don’t want your memory to be fuzzy at trial. Therefore, taking notes at the time of the events will be an enormous help. Notes made at the time of the events appear more credible than your memories after a lawsuit has started, and jurors will give them more weight.

However, use caution in your note taking. All of the notes could be evidence in your case. Therefore, limit your note taking to only the relevant harassing or discriminatory conduct. Some people go overboard by documenting all transgressions against them, real or perceived. They appear to be vexatious and disagreeable people. Certainly that will not go over well with a jury!


Gather Your Evidence!

A hostile work environment can take many forms. Did someone draw an offensive picture? Write you a harassing e-mail? Save those items. People sometimes discard these things out of disgust, but they are also destroying their best evidence. These should be kept because you have to prove your case.

You should also save any papers given to you that relate to your problem, such as copies of “write-ups”, policies, etc. By no means should you take confidential or proprietary items from your employer (if you do, you may not be able to use it in your case), but, if such things relate to the harassment or discrimination you are suffering, you should take notes on their author, date, content, where it is kept, and other identifying information so it can be retrieved later on in formal proceedings.


Don’t Try to Secretly Tape or Record Conversations!

Many people secretly record meetings in a hope to catch someone in a damaging admission. “Aha!” they think, “I’ve got them on tape! They can’t deny it now!” Wrong: someone who secretly records a conversation is in big trouble. In California where I practice law, tape recording conversations without the consent of the other person is a crime and you could be prosecuted for it. Even if you do record damaging admissions, the admissions very likely will not be admitted as evidence in support of your case. However, if you make an admission that damages your case, then very likely it will be in evidence against you. It is a no-win situation for people who make secret tape recordings. The best advice is don’t do it.


Do Not Encourage the Harassment or Discrimination!

A big defense to sexual harassment cases is consent. If you appear to enjoy what is occurring, then certainly you will have a hard time proving that you were harassed or discriminated or that you were in a hostile work environment. By all means, do not play along with something you do not like. Rather, make it clear that you do not like what is going on, and then follow your company’s human resource policies on what to do when you feel harassed or subject to discrimination.


Get Legal Advice!

If you feel something wrong is going on, call an attorney such as myself. You will only benefit by getting advice from someone who has experience in tough work situations and who knows the law. There is no downside for you.

California attorneys who specialize in employee rights typically charge contingency fees, meaning that you do not pay them money unless you win a recovery. I often counsel employees in harassment and discrimination situations free of charge.

Workplace harassment takes many forms and not all advice may be appropriate for each case. If you feel you are subject to sexual harassment, a hostile work environment, or other forms of workplace harassment, call Harris & Kaufman at (818)990-1999. We are California attorneys located in Sherman Oaks, California.