Under the FEHA

What Does The Law Require Of Employers?

When it comes to applicants and employees with disabilities, the FEHA generally requires two things of employers. Those requirements are:

1. Employers must provide reasonable accommodation for those applicants and employees who, because of their disability, are unable to perform the essential functions of their job.
2. Employers must engage in a timely, good faith interactive process with applicants or employees in need of reasonable accommodation.

What Is A Disability Under The Law?

The Fair Employment and Housing Act basically defines two categories of disability: mental disability and physical disability. Each category contains its own specific definitions. Additionally, under the FEHA, an employee with a “medical condition” is also entitled to accommodation.

The following are the specific definitions of physical disability, mental disability, and medical condition as outlined in the FEHA:

Physical Disability—Having any physiological disease, disorder, condition, cosmetic disfigurement, or anatomical loss that affects one or more of several body systems and limits a major life activity. The body systems listed include the neurological, immunological, musculoskeletal, special sense organs, respiratory, including speech organs, cardiovascular, reproductive, digestive, genitourinary, hemic and lymphatic, skin and endocrine systems. A physiological disease, disorder, condition, cosmetic disfigurement, or anatomical loss limits a major life activity, such as working, if it makes the achievement of the major life activity difficult.

When determining whether a person has a disability, an employer cannot take into consideration any medication or assistive device, such as wheelchairs, eyeglasses or hearing aids, that an employee may use to accommodate the disability. However, if these devices or mitigating measures “limit a major life activity,” they should be taken into consideration.

Physical disability also includes any other health impairment that requires special education or related services; having a record or history of a disease, disorder, condition, cosmetic disfigurement, anatomical loss, or health impairment which is known to the employer; and being perceived or treated by the employer as having any of the aforementioned conditions.

Mental Disability—Having any mental or psychological disorder or condition, such as mental retardation, organic brain syndrome, emotional or mental illness, or specific learning disabilities, that limits a major life activity, or having any other mental or psychological disorder or condition that requires special education or related services. An employee who has a record or history of a mental or psychological disorder or condition which is known to the employer, or who is regarded or treated by the employer as having a mental disorder or condition, is also protected.

It should be noted that under both physical and mental disability, sexual behavior disorders, compulsive gambling, kleptomania, pyromania, or psychoactive substance use disorders resulting from the current unlawful use of controlled substances or other drugs, are specifically excluded and are not protected under the FEHA.

Medical Condition—Any health impairment related to or associated with a diagnosis of cancer or a record or history of cancer, or a genetic characteristic.

A “genetic characteristic” can be a scientifically or medically identifiable gene or chromosome or an inherited characteristic that could statistically lead to increased development of a disease or disorder. For example, women who carry a gene established to statistically lead to breast cancer are protected under state law.

Keep in mind, however, that Government Code section 12940 (o) makes it an unlawful employment practice for an employer to subject, directly or indirectly, any applicant or employee, to a test for the presence of a genetic characteristic.

In determining a disability, an employer may only request medical records directly related to the disability and need for accommodation. However, an applicant or an employee may submit a report from an independent medical examination before disqualification from employment occurs. The report must be kept separately and confidentially as any other medical records, except when a supervisor or manager needs to be informed of restrictions for accommodation purposes or for safety reasons when emergency treatment might be required.

What Can Be Done For An Applicant Or Employee With A Disability?

Once a disability that is protected under the law is established, an employer is obligated to provide a reasonable accommodation unless the accommodation would represent an undue hardship to the business operation.

In the process of determining a reasonable accommodation, an employer must enter into a good-faith, interactive process to determine if there is a reasonable accommodation that would allow the applicant or employee to obtain or maintain employment. The first step of the “interactive process” is determining the “essential functions” of the position. When determining whether a job function is essential, the following should be taken into consideration: (1) the position exists to perform that function; (2) there are a limited number of employees available to whom the job function can be distributed; or (3) the function is highly specialized.

Evidence of whether a particular function is essential includes the employer’s judgment as to which functions are essential; a written job description prepared before advertising or interviewing applicants for the job; the amount of time spent on the job performing the function; the consequences of not requiring the incumbent to perform the function; the terms of a collective bargaining agreement; the work experiences of past incumbents in the job; or the current work experience of incumbents in similar jobs.

Once an employer has evaluated the position and the essential functions of the position, he or she should begin the process of determining reasonable accommodation by engaging in good-faith interaction with the employee.

What Is A Reasonable Accommodation?

Reasonable Accommodation

Reasonable accommodation is any appropriate measure that would allow the applicant or employee with a disability to perform the essential functions of the job. It can include making facilities accessible to individuals with disabilities or restructuring jobs, modifying work schedules, buying or modifying equipment, modifying examinations and policies, or other accommodations. For example, providing a keyboard rest for a person with carpal tunnel syndrome may qualify as a reasonable accommodation. A person with asthma may require that the lawn care be rescheduled for a non-business day.

What Is The Interactive Process?

Interactive Process

State law incorporates guidelines developed by the Equal Employment Opportunity Commission in defining an “interactive process” between the employer and the applicant or employee with a known disability.

The guidelines include: consulting with the individual to ascertain the precise job-related limitations and how they could be overcome with a reasonable accommodation; and identifying potential accommodations and assessing their effectiveness.

Although the preferences of the individual in the selection of the accommodation should be considered, the accommodation implemented should be one that is most appropriate for both the employee and the employer.

What Is Good Faith?

Good Faith

Federal courts have provided an interpretation of “good faith,” essentially stating that an employer and employee must communicate directly with each other to determine essential information and that neither party can delay or interfere with the process.

To demonstrate good-faith engagement in the interactive process, the employer should be able to point to cooperative behavior that promotes the identification of an appropriate accommodation.

Must An Applicant Or Employee Always Be Accommodated?

The FEHA does provide legal reasons an employer can permissibly refuse to accommodate a request for reasonable accommodation from an applicant or employee. One of the legal reasons is whether the accommodation would present an undue hardship to the operation of the employer’s business.

If an employer denies accommodation because it would be an “undue hardship,” it must be shown that the accommodation requires significant difficulty or expense, when considered in the light of the following factors:

• The nature and cost of the accommodation needed;
• The overall financial resources of the facilities involved in the provision of the reasonable accommodations, the number of persons employed at the facility, and the effect on expenses and resources or the impact otherwise of these accommodations upon the operation of the facility;
• The overall financial resources of the employer, the overall size of the business with respect to the number of employees, and the number, type, and locations of its facilities;
• The type of operations, including the composition, structure, and functions of the workforce of the employer; and
• The geographic separateness, administrative or fiscal relationship of the facility or facilities.

For example, an applicant with a severe vision impairment applies for employment with a small market that has only four other employees. The applicant requires assistance to work the register by having another employee present at all times. The business in question would not have to provide the accommodation if, for example, it could not afford the cost of the additional staff or could not afford the cost of remodeling to accommodate two employees at the same time.

What Questions May Be Asked Of An Applicant Or Employee?

What questions may be directed to an individual depends, largely, upon whether the individual is an applicant for a position or is currently employed by the employer.

Pre-Employment Inquiries

Prior to employment, it is unlawful for an employer to require an applicant to attend a medical/psychological examination, make any medical/psychological inquiry, make any inquiry as to whether an applicant has a mental/physical disability or medical condition, or make any inquiry as to the severity of the disability or medical condition.

However, an employer may inquire into the ability of an applicant to perform job-related functions and may respond to an applicant’s request for reasonable accommodation or require a medical/psychological examination or make an inquiry of a job applicant after an employment offer has been made but prior to the start of employment provided that the examination or inquiry is job-related and consistent with business necessity and all new employees in the same job classification are subject to the same examination or inquiry.

Post-Employment Inquiries

If the individual is a current employee, the employer may not require any medical/psychological examination of an employee or make any of the following inquiries:

• Medical or psychological;
• Whether an employee has a mental/physical disability; or
• The nature or severity of a physical disability, mental disability, or medical condition.

However, an employer may require any examinations or inquiries that it can show to be job-related and consistent with business necessity. Furthermore, an employer may conduct voluntary medical examinations, including voluntary medical histories, which are part of an employee health program available to employees at that worksite.

What Are The Remedies Available Under The Fair Employment And Housing Act?

Under the Fair Employment and Housing Act, if an employer fails to reasonably accommodate an applicant or employee, the Fair Employment and Housing Commission can order the employer to cease and desist the discriminatory practice; to hire or reinstate; and award actual damages including, but not limited to, lost wages; emotional distress damages; and administrative fines not to exceed $150,000.00. If the matter is heard in civil court, the damages would be unlimited.

If Discrimination Has Occurred, What Can Be Done?

If an applicant or employee believes they have been discriminated against or denied reasonable accommodation for their disability, they should first try to work with the immediate supervisor to resolve the issue. If there is still no resolution, they should contact the employer’s reasonable accommodation coordinator, a human resource representative or the person in charge of accommodation issues. Again, both the applicant or employee and the employer must engage in a good-faith interactive process to determine an appropriate resolution.

If the issue is still not resolved, the applicant or employee can contact the Department of Fair Employment and Housing at any time during the process and file a complaint.

However, they have only one year from the date of harm (denial of accommodation, discharge, etc.) to file a complaint with the Department.

If you feel you have been discriminated against as a result of your disability, please contact us at (310) 477-7767 or fill out the form here to discuss the issues surrounding your situation.