Discrimination on the basis of disability is extremely common in California. This page details the basics of CA’s disability discrimination laws. The goal of this information is to help the non-lawyer understand their employment rights. We highly recommend that you contact an employment lawyer if you feel like you were fired due to your disability for a consultation. If you’re looking to learn about another type of discrimination, visit our general discrimination page.
This whiteboard video was made by an attorney Mr. Odell went to law school with. It gives a great overview of California’s disability discrimination law.
Subjects covered on this page:
- The basics of CA’s discrimination law
- What is a disability under California law?
- What are reasonable accommodations?
- What is the interactive process?
- What can you recover in a disability discrimination lawsuit?
- Typical verdicts and settlements in disability discrimination suits
- The statute of limitations
- How much does a discrimination lawyer cost?
- When should you consult with a disability discrimination lawyer?
Disability Discrimination Basics
At its basic level, CA law says that corporations cannot fire a disabled employee if he or she can perform the essential functions of the job. Companies are also prohibited from firing a disabled worker even if that employee can’t currently perform the essential functions, but could if he or she is given a reasonable accommodation. This foundational law can be found in the California Fair Employment & Housing Act § 12940(a)&(m).
Under FEHA, California employees are afforded more protection than the federal Americans with Disabilities Act (“ADA”). FEHA offers CA residents broader protection, applies to smaller employers, and the definition of disability is not as limited. FEHA is also more powerful that Title VII, which places damage caps on disabled employee verdicts. This is yet another example of how California makes an extra effort to protects its working class employees.
What Constitutes a “Disability” Under California’s Employment Law?
This is a tricky question to answer. Under CA’s disability discrimination law, “disabilities” fall within three categories: physical disability, mental disability, and medical conditions.[1]
A physical disability is any physiological disease, disorder, condition, cosmetic disfigurement, or anatomical loss that affects certain body systems and limits an individual’s ability to participate in major life activities.[2] Limits “major life activities” means it makes the achievement of a major life activity difficult.[3]
This definition includes, but is not limited to, chronic or episodic conditions such as HIV/AIDS, hepatitis, epilepsy, seizures, diabetes, heart disease, and multiple sclerosis. Other physical limitations may qualify as a disability such as polio, back conditions, hypertension, broken bones, surgery, and pregnancy related disabilities. Pain alone does not constitute a disability unless it limits a major life activity. If your disability is not listed here, call an employment lawyer for a consultation.
A mental disability includes any mental or psychological disorder, such as intellectual disability, organic brain syndrome, emotional or mental illness, or specific learning disabilities that “limits a major life activity.”[4] This includes clinical depression, bipolar disorder, mental illness, specific learning disabilities, autism spectrum disorders, schizophrenia, and chronic or episodic conditions, such as post-traumatic stress disorder and obsessive compulsive disorder.
A medical condition means either: 1) health impairments related to or associated with a diagnosis of cancer or a history of cancer, or 2) genetic characteristics. Individuals with genes or inherited characteristics that are associated with an increased risk of a disease are considered disabled.
What are Reasonable Accommodations?
When an employee is disabled and can’t do the job, sometimes the employee can still do the job with a small change to his or her employment. This is called a reasonable accommodation. It is against the law for an employer “to fail to make reasonable accommodation for the known physical or mental disability” of an employee. This law does not require companies to accommodate employees if it will “produce undue hardship to the corporation’s operation.”[5]
Employees must request these accommodations! A company cannot accommodate you if they do not know you need to be accommodated. This brings up another important area of disability discrimination law; it is unlawful to retaliate against you for requesting an accommodation.[6] If your employer asks you for a doctor’s note they are allowed to do that.
If you want to learn more about CA’s accommodation laws, visit our reasonable accommodation page. You can also visit our reasonable accommodation examples page if you want to see some common examples.
What is the Interactive Process?
Not only are employers prohibited from firing employees for disabilities, and required to reasonably accommodate disabled workers, but they are also required to work with the employee to find a reasonable accommodation. This is called the “interactive process” and is detailed in CA Government Code 12940(n). It is an unlawful employment practice for an employer to fail to engage in a timely, good faith, interactive process with the employee to determine effective reasonable accommodations, if any, in response to a request for reasonable accommodation by an employee with a known physical or mental disability or known medical condition.
What Can You Recover in a Disability Discrimination Lawsuit?
If you prevail at trial, you can recover the wages you would have earned had you not been discriminated against. For example, if you were earning $60,000 per year but then got fired because of your disability, you can recover the amount of money you would have earned had you not been unlawfully terminated.
You may recover for the pain and suffering caused by the discrimination. Generally, these “emotional distress” damages include pay for anxiety, depression, uncertainty, and mental suffering. The law tries to compensate for past emotional distress as well as future emotional distress.
One of the powerful components of a disability discrimination claim is that employees may recover their attorney’s fees as well. Since many discrimination claims have small economic and emotional distress damages, California’s law makers incentivized employment lawyers to take discrimination cases by inserting an attorney fee provision.
Finally, you may recover punitive damages if you prove the corporation truly engaged in reprehensible behavior. Punitive damages are extremely rare. In order to win punitive damages, the plaintiff must show that the company acted with malice, fraud, or oppression.
Typical Settlements in Disability Discrimination Lawsuits
Most discrimination cases settle. Since all settlements are subject to confidentiality provisions, there is no data upon which to generate an average. But, anecdotally, it is fair to say that the majority of disability discrimination cases settle for under $50,000. If you have a case you should not expect a certain amount from your lawsuit. Every case is vastly different and settlement value varies tremendously.
Statute of Limitations
Generally, there is one year from your termination to acquire a right to sue letter from the DFEH. On most occasions, your attorney will acquire this right-to-sue letter for you. You have one year from acquisition date of the letter to file your case in court or arbitration.
The statute of limitations is different for employees of public entities. The statute of limitations may be as short as six months! Since the statute in discrimination cases varies widely, we recommend that you consult with an employment lawyer immediately. Our office gives everyone a free consultation.
The Cost of a Disability Discrimination Lawyer
Lawyers who represent disabled employees are paid with a contingency fee. This means that the lawyer is only paid if he or she successfully recovers monetary damages for you. The attorney will get paid a percentage of your award. You do not pay the lawyer any money out of pocket. The law office will also advance the costs of the case on your behalf, and recover the costs from the settlement or verdict proceeds at the end of the case.
Free Consultation with a Disability Discrimination Attorney
Our office gives every person a free consultation. This is your chance to tell the law office your story. While we cannot accept every case, we try very hard to give every person who calls us an ample amount of time to tell us the complete story. If you’ve been fired because of your disability we recommend that you call our Los Angeles lawyer immediately.
If you are looking for our racial discrimination page, click here. If you are looking for our gender discrimination page, click here. If you are looking for our age discrimination page, click here. If you are looking for our religious discrimination page, click here.
Footnotes:
[1] CA Government Code § 12920
[2] CA Government Code § 12926(m)(1)
[3] Gov.C. § 12926(m)(1)(B)(ii)
[4] CA Government Code § 12926(j)(1)
[5] CA Government Code § 12940(m)(1)
[6] CA Government Code § 12940(m)(2)