Los Angeles Disability Discrimination Lawyer

A physical disability is 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, speech, 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 achieving the major life activity difficult.

When determining whether a person has a disability, an employer cannot consider 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 considered. 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 that is known to the employer; and being perceived or treated by the employer as having any of the aforementioned conditions.

A mental disability is 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 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.

A medical condition is any health impairment related to or associated with a diagnosis of cancer, 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.

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; and (2) employers must engage in a timely, good faith interactive process with applicants or employees in need of reasonable accommodation.

However, before engaging applicants or employees, the employer should have some understanding of what constitutes a “disability” under state law. Before an applicant or employee can be reasonably accommodated, he or she must establish that he or she has a disability as defined under the Fair Employment and Housing Act.

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 someone with carpal tunnel syndrome may be a reasonable accommodation. A person with asthma may require that the lawn care be rescheduled for a non-business day.

The FEHA provides legal reasons for an employer to permissibly refuse to request 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 providing 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 facility’s operation.
• The employer’s overall financial resources, the business’s overall size for 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 employer’s workforce.
• 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 always having another employee present. 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 simultaneously.

The interactive process includes consulting with the individual to ascertain the precise job-related limitations and how they could be overcome with a reasonable accommodation, identifying potential accommodations, and assessing their effectiveness. Although the individual’s preferences in the accommodation selection should be considered, the accommodation implemented should be most appropriate for both the employee and the employer. The interactive process must be conducted in “good faith,” meaning that the employer and employee must communicate directly to determine essential information, and 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.

Employment discrimination is prohibited against “qualified individuals with disabilities.” This includes applicants for employment and employees. An individual is considered to have a “disability” if s/he has a physical or mental impairment that substantially limits one or more major life activities, has a record of such an impairment, or is regarded as having such an impairment. Persons discriminated against because they have a known association or relationship with an individual with a disability are also protected.

The first part of the definition clarifies that the ADA applies to persons with impairments and that these must substantially limit major life activities such as seeing, hearing, speaking, walking, breathing, performing manual tasks, learning, caring for oneself, and working. An individual with epilepsy, paralysis, HIV infection, AIDS, a substantial hearing or visual impairment, mental retardation, or a specific learning disability is covered. Still, an individual with a minor, non-chronic condition of short duration, such as a sprain, broken limb, or the flu, generally would not be covered.

The second part of the definition protecting individuals with a record of a disability would cover, for example, a person who has recovered from cancer or mental illness.

The third part of the definition protects individuals regarded as having a substantially limiting impairment, even though they may not have such an impairment. For example, this provision would protect a qualified individual with severe facial disfigurement from being denied employment because an employer feared the “negative reactions” of customers or co-workers.

A qualified individual with a disability is a person who meets legitimate skill, experience, education, or other requirements of an employment position that s/he holds or seeks and who can perform the “essential functions” of the position with or without reasonable accommodation. Requiring the ability to perform “essential” functions assures that an individual with a disability will not be considered unqualified simply because of an inability to perform marginal or incidental job functions. Suppose the individual is qualified to perform essential job functions except for limitations caused by a disability. In that case, the employer must consider whether the individual could perform these functions with a reasonable accommodation. Suppose a written job description has been prepared before advertising or interviewing applicants for a job. In that case, this will be considered as evidence, although not conclusive evidence, of the essential functions of the job.

No. An employer can select the most qualified applicant available and make decisions based on reasons unrelated to a disability. For example, suppose two persons apply for a job as a typist; an essential function is accurately typing 75 words per minute. One applicant, an individual with a disability, who is provided with a reasonable accommodation for a typing test, types 50 words per minute; the other applicant, who has no disability, accurately types 75 words per minute. The employer can hire an applicant with a higher typing speed for the job’s successful performance.

An employer may not ask or require a job applicant to take a medical examination before making a job offer. It cannot make any pre-employment inquiry about a disability or the nature or severity of a disability. An employer may, however, ask questions about the ability to perform specific job functions and may, with certain limitations, ask an individual with a disability to describe or demonstrate how s/he would perform these functions.

An employer may condition a job offer on the satisfactory result of a post-offer medical examination or medical inquiry if this is required of all entering employees in the same job category. A post-offer examination or inquiry must not be job-related and consistent with business necessity.

However, suppose an individual is not hired because a post-offer medical examination or inquiry reveals a disability. In that case, the reason(s) for not hiring must be job-related and consistent with business necessity. The employer also must show that no reasonable accommodation would enable the individual to perform the essential job functions or that accommodation would impose an undue hardship. A post-offer medical examination may disqualify an individual if the employer can demonstrate that the individual would pose a “direct threat” in the workplace (i.e., a significant risk of substantial harm to the health or safety of the individual or others) that cannot be eliminated or reduced below the “direct threat” level through reasonable accommodation. Such a disqualification is job-related and consistent with business necessity. A post-offer medical examination may not disqualify an individual with a disability who is currently able to perform essential job functions because of speculation that the disability may cause a risk of future injury.

After an employee starts work, a medical examination or inquiry must be job-related and consistent with business necessity. Employers may conduct employee medical examinations with evidence of a job performance or safety problem, examinations required by other Federal laws, examinations to determine current fitness to perform a particular job, and voluntary examinations that are part of employee health programs.

Information from all medical examinations and inquiries must be kept apart from general personnel files as a confidential medical record, available only under limited conditions.

Tests for illegal use of drugs are not medical examinations under the ADA and are not subject to the restrictions of such examinations.

No. The ADA does not require employers to develop or maintain job descriptions. However, a written job description that is prepared before advertising or interviewing applicants for a job will be considered as evidence and other relevant factors. If an employer uses job descriptions, they should be reviewed to ensure they accurately reflect a job’s actual functions. A job description will be most helpful if it focuses on the results or outcome of a job function, not solely on how it is customarily performed. A reasonable accommodation may enable a person with a disability to accomplish a job function in a manner that is different from the way an employee who is not disabled may accomplish the same function.

Reasonable accommodation is any modification or adjustment to a job or the work environment that will enable a qualified applicant or employee with a disability to participate in the application process or to perform essential job functions. Reasonable accommodation also includes adjustments to assure that a qualified individual with a disability has rights and privileges in employment equal to those of employees without disabilities.

Examples of reasonable accommodation include making existing facilities used by employees readily accessible to and usable by an individual with a disability, restructuring a job, modifying work schedules, acquiring or modifying equipment, providing qualified readers or interpreters, or appropriately modifying examinations, training, or other programs. Reasonable accommodation may also include reassigning a current employee to a vacant position for which the individual is qualified if the person cannot do the original job because of a disability, even with an accommodation. However, there is no obligation to find a position for an applicant who is not qualified for the position sought. Employers are not required to lower quality or quantity standards as an accommodation, nor are they obligated to provide personal use items such as glasses or hearing aids.

The decision as to the appropriate accommodation must be based on the particular facts of each case. In selecting the particular type of reasonable accommodation to provide, the principal test is effectiveness, i.e., whether the accommodation will allow a person with a disability to achieve the same level of performance and to enjoy benefits equal to those of an average, similarly situated person without a disability. However, the accommodation does not have to ensure equal results or provide the same benefits.

An employer is only required to accommodate a “known” disability of a qualified applicant or employee. The requirement will generally be triggered by a request from an individual with a disability, who will frequently be able to suggest appropriate accommodation. Accommodations must be made individually because the nature and extent of a disabling condition and job requirements will vary in each case. Suppose the individual does not request an accommodation. In that case, the employer is not obligated to provide one except where an individual’s known disability impairs his/her ability to know of or effectively communicate a need for an accommodation that is obvious to the employer. If a person with a disability requests but cannot suggest an appropriate accommodation, the employer and the individual should work together to identify one. Many public and private resources can assist without cost.

The individual with a disability requiring the accommodation must be otherwise qualified, and the disability must be known to the employer. In addition, an employer is not required to make an accommodation if it would impose an “undue hardship” on the operation of the employer’s business. “Undue hardship” is defined as an “action requiring significant difficulty or expense” when considering several factors. These factors include the nature and cost of the accommodation and the size, resources, nature, and structure of the employer’s operation. Undue hardship is determined on a case-by-case basis. Where the facility making the accommodation is part of a larger entity, the structure and overall resources of the larger organization would be considered, as well as the financial and administrative relationship of the facility to the larger organization. In general, a larger employer with greater resources would be expected to make accommodations requiring more significant effort or expense than would be required of a smaller employer with fewer resources.

If a particular accommodation would be an undue hardship, the employer must try to identify another accommodation that will not pose such a hardship. Also, suppose the cost of an accommodation would impose an undue hardship on the employer. In that case, the individual with a disability should be given the option of paying that portion of the cost, which would constitute an undue hardship or providing the accommodation.

The employer’s obligation under Title I is to provide access for an individual applicant to participate in the job application process and for an individual employee with a disability to perform the essential functions of his/her job, including access to a building, to the work site, to needed equipment, and all facilities used by employees. For example, suppose an employee lounge is located in a place inaccessible to an employee using a wheelchair. In that case, the lounge might be modified or relocated, or comparable facilities might be provided in a location that would enable the individual to take a break with co-workers. The employer must provide such access unless it would cause an undue hardship.

Under Title I, an employer is not required to make its existing facilities accessible until a particular applicant or employee with a particular disability needs an accommodation. Then, the modifications should meet that individual’s work needs. However, employers should consider initiating changes that will provide general accessibility, particularly for job applicants, since it is likely that people with disabilities will be applying for jobs. The employer does not have to make changes to provide access to places or facilities that will not be used by that individual for employment-related activities or benefits.

No. An employer is not required to reallocate essential functions of a job as a reasonable accommodation.

Yes. Accommodations may be needed to ensure that tests or examinations measure an individual’s actual ability to perform job functions rather than reflect limitations caused by the disability. Tests should be given to people with sensory, speaking, or manual impairments in a format that does not require the impaired skill unless it is a job-related skill that the test is designed to measure.

An employer can hold employees with disabilities to the same standards of production/performance as other similarly situated employees without disabilities for performing essential job functions, with or without reasonable accommodation. An employer can also hold employees with disabilities to the same standards of production/performance as other employees regarding marginal functions unless the disability affects the person’s ability to perform those marginal functions. Suppose the ability to perform marginal functions is affected by the disability. In that case, the employer must provide some reasonable accommodation, such as job restructuring, but may not exclude an individual with a disability who is satisfactorily performing a job’s essential functions.

An employer can establish attendance and leave policies that are uniformly applied to all employees, regardless of disability, but may not refuse leave needed by an employee with a disability if other employees get such leave. An employer may also be required to adjust the leave policy as a reasonable accommodation. The employer is not obligated to provide additional paid leave, but accommodations may include leave flexibility and unpaid leave.

A uniformly applied leave policy does not violate the ADA because it has a more severe effect on an individual because of his/her disability. However, suppose an individual with a disability requests a modification of such a policy as a reasonable accommodation. In that case, an employer may be required to provide it unless it would impose an undue hardship.

Yes. The ADA permits employers to establish qualification standards that will exclude individuals who pose a direct threat — i.e., a significant risk of substantial harm — to the health or safety of the individual or of others if that risk cannot be eliminated or reduced below the level of a “direct threat”  by reasonable accommodation. However, an employer may not simply assume that a threat exists; the employer must establish through objective, medically supportable methods that there is a significant risk that substantial harm could occur in the workplace. By requiring employers to make individualized judgments based on reliable medical or other objective evidence rather than on generalizations, ignorance, fear, patronizing attitudes, or stereotypes, the ADA recognizes the need to balance the interests of people with disabilities against the legitimate interests of employers in maintaining a safe workplace.

No. Individuals who currently engage in the illegal use of drugs are specifically excluded from the definition of a “qualified individual with a disability” protected by the ADA when the employer takes action based on their drug use.

Yes. A test for the illegal use of drugs is not considered a medical examination under the ADA; therefore, employers may conduct such testing of applicants or employees and make employment decisions based on the results. The ADA does not encourage, prohibit, or authorize drug tests.

If the results of a drug test reveal the presence of a lawfully prescribed drug or other medical information, such information must be treated as a confidential medical record.

Yes. While a current illegal user of drugs is not protected by the ADA if an employer acts based on such use, a person who currently uses alcohol is not automatically denied protection. An alcoholic is a person with a disability and is protected by the ADA if s/he is qualified to perform the essential functions of the job. An employer may be required to provide an accommodation to an alcoholic. However, an employer can discipline, discharge, or deny employment to an alcoholic whose use of alcohol adversely affects job performance or conduct. An employer also may prohibit the use of alcohol in the workplace and can require that employees not be under the influence of alcohol.

The ADA prohibits discrimination based on relationships or associations to protect individuals from actions based on unfounded assumptions that their relationship to a person with a disability would affect their job performance and from actions caused by bias or misinformation concerning certain disabilities. For example, this provision would protect a person whose spouse has a disability from being denied employment because of an employer’s unfounded assumption that the applicant would use excessive leave to care for the spouse.