What is a Legally Protected Disability in California?

September 17, 2019 / Employment Law
What is a Legally Protected Disability in California? banner image

You might already know that it is illegal for your employer to discriminate against you because of a disability.  The definition of a disability under the California Fair Employment and Housing Act (FEHA) is not very clear and may leave you wondering if your medical issues are protected under FEHA.  This article will help.

What Disabilities Are Protected?

Disabilities include physical conditions which impact your ability to participate in major life activities. It is enough that your impairment makes a life activity (such as working, or other physical and mental tasks) “difficult” compared to the normal or average person without such impairment.  Mitigating measures are not considered when determining whether a person is disabled.  For example, if you have a vision disability, but see fine with glasses, you are still considered disabled under discrimination law.

Unlike federal law, which requires that a disability “substantially” limits a life activity, under California law (known as FEHA) a disability only needs to “limit” an activity. This means that some conditions which don’t qualify as a disability in federal court or other states may be protected in California.

Physical disabilities, such as an orthopedic problem, and illnesses, such as a cardiovascular condition or a pregnancy-related problem, are protected disabilities.  Even mental disabilities which limit a major life activity are also protected.  Some disabilities are specifically protected, including: clinical depression, bipolar disorder, emotional or mental illness, intellectual or cognitive disability, organic brain syndrome, learning disabilities, autism spectrum disorders, schizophrenia, post-traumatic stress disorder and obsessive-compulsive disorder.

Who is Protected?

Of course, disabled employees are protected from disability discrimination by their employers.  But there are other situations where you may be protected which you might not know about.  FEHA protects you if you are regarded as disabled, even if you’re not.  This includes when an employer erroneously or mistakenly believes an employee is disabled.  For example, a court held that an employee could be “regarded as disabled” for having shoulder pain, whether the shoulder pain was actually disabling under the law.

Even independent contractors are protected from disability harassment.  So, if you work as an independent contractor, and the contracting company harasses you because of a disability, they might be liable in court.  FEHA also protects applicants to a position from disability discrimination.  This might become an issue if you have a disability which is apparent, such as use of a wheelchair or a speech impediment and you feel you were not hired because of it.

How Are You Protected?

Disability discrimination can take many forms.  Discrimination can include termination, suspension, discipline, reassignment, failure to hire or promote, or any other adverse employment action which is due to the employee’s disability.  FEHA also protects against retaliation.  So, your employer cannot discharge or otherwise discriminate against you because you opposed wrongful conduct, filed a complaint, or testified or assisted in a disability discrimination case for yourself or your coworkers.

If you have a disability, your employer also has an affirmative duty to accommodate you.  This means that your employer must provide accommodation if you are able to perform your job with those accommodations.  Some types of accommodations include job restructuring, modified work schedules, providing assistive devices, providing additional training, or allowing assistive animals on the worksite (such as guide dogs or emotional support animals).  Your employer is also required to engage in a “good faith interactive process” to accommodate you, which means that they must have reasonable discussions with you to reach an agreement on what a reasonable accommodation for your disability would be.  FEHA also prohibits harassment based on disability, so people at work are not allowed to make fun of you or give you a hard time due to a disability you may have.

If you think you might have been mistreated at work due to your disability, contact L&B Law Group for a free consultation.


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