There is a misconception that disabled people do not want to work, or that disabled individuals simply cannot or will not be as valuable in the workplace as another able bodied individual.
In the state of California it is estimated that 33.5% of disabled individuals are employed and 9.5% disabled individuals are currently not working but are looking for gainful employment (Cornell University, 2014). These are people who want to be employed and who want to have a positive impact on our economy.
Unfortunately many give up the search on a regular basis because they feel or know that they are being discriminated against when interviewing for or working in a job.
“Qualified Individual with a Disability” Defined
Someone who is a “qualified individual with a disability” is an individual who meets the skill, education, experience or other requirements of an employment position which he or she holds, or which he or she is seeking. These individuals can perform all of the “essential functions” of a position either with or without what is known as “reasonable accommodation” (which we will address a bit later on).
It is important that disabled workers are qualified. If an individual is “qualified” to perform essential job functions (apart from any limitations due to his or her disability), then the employer must consider if a job applicant can perform these functions with reasonable accommodation.
What may be most important for those who are applying to jobs is the written job description. Should a written job description be prepared in advance, then this can be used as evidence (though not conclusive evidence) that an applicant can or could have performed essential functions of the job.
On that note, employers do not need to prefer a “qualified applicant with a disability” over another equally or more qualified applicant. Employers can hire an applicant who best fulfills the job role. For example, if a disabled applicant types 35 words per minute but an able bodied applicant can type 75 words per minute and they are performing data entry, the employer can hire the applicant with the higher typing speed.
Who Is Protected from Employment Discrimination?
Employment discrimination is prohibited against “qualified individuals with disabilities”. This term covers both employees and applicants for employment.
First, an individual is considered to have a disability if he or she has a physical or mental impairment which imposes substantial limitations on one or more life activities, including a medical condition that limits the employee’s ability to work. These are also individuals who are medically known to have an impairment or who are regarded as having an impairment.
Some of the most common impairments include:
- Performing manual tasks
- Caring for one’s self
There are other impairments which may fall under the general “disability” umbrella, including:
- HIV infection
- Mental retardation
Examples of what would likely not be covered are non-chronic conditions such as a sprain, the flu, or a broken limb.
An individual may also be considered to have an impairment if they have a record of disability, such as a person who has or is recovering from cancer or a mental illness. Those who also have a substantially limiting impairment may also qualify, such as someone who has a severe facial disfigurement but who was denied employment because an employer believed that his or her customers would have “negative reactions” from customers and/or co-workers.
What a “Disability” May Look Like
The Fair Employment and Housing Act generally accepts that a disability may fall under one of the following two umbrellas:
- Physical disability
- Mental disability
Someone who suffers from a physical disability may have a physiological disorder, disease, condition, anatomical lose or cosmetic disfigurement which affects one or more body systems. This results in a limitation on the person’s activity. Some of these body systems may include:
- Special sense organs
- Skin and endocrine systems
A mental disability is a psychological or mental condition or disorder which can impede one’s activities in life. This may be due to mental retardation, emotional or mental stress, organic brain syndrome, or a specific learning disability. These mental or psychological disorders also require special education (or another related service)
Mental conditions are not the same as a mental disability. A mental condition is considered to be a health impairment which is related to or associated with a genetic characteristics or a diagnosis of cancer (or a history of cancer). As an example, women who carry an established gene which increases her chance of breast cancer are protected under state law.
How Fair Employment and Housing Act (FEHA) Protects Disabled Employees
FEHA helps protect applicants and employees with disabilities by demanding the following two things from employers:
- The employer must provide reasonable accommodation for disabled applicants and employees
- An employer must engage in a timely and good faith interactive process with applicants or employees in need of “reasonable accommodation
Reasonable accommodation is any appropriate measure which allows a disabled applicant or employee to perform essential job role functions. This may include modifying a work schedule, modifying or purchasing new equipment, restructuring jobs, and modifying examinations and policies.
Not every accommodation which a disabled applicant or employee may deem necessary for the job may be legally required by FEHA. There are legal reasons for an employer to permissibly refuse to accommodate the request for “reasonable accommodation”, with the most common being because it would cause “undue hardship” to an employer. An employer must prove this by showing one or more of the following factors:
- The cost and nature of the accommodation would present undue hardship to the employers operation of the business
- The financial resources would have a negative impact on the operation of the facility
- The operations (including the structure, composition, and functions of the workforce) cannot be accommodated
- The administrative or fiscal relationship, or the geographic separateness of the facility, makes an employer unable to accommodate someone with a certain type of disability
For example, let’s say an applicant has a severe vision impairment applies for a job with a small market where where are only five other employees. The applicant requires assistance to work at the register by having one of those four other employees present at all times. If the business in question could not afford additional staff to accommodate the employee, or it could not afford the cost of remodeling to accommodate having two employees at the same time, they may be allowed to not provide “reasonable accommodation”.
An employer cannot simply demand you are 100% healed to return to work. See Gelfo v. Lockheed Martin Corp., 140 Cal. App. 4th 34, 49 n.11 (2006) (“A policy requiring an employee be ‘100 percent healed’ before returning to work is a per se violation even under the Americans with Disabilities Act [ADA] because it permits an employer to avoid the required individualized assessment of the employee’s ability to perform the essential functions of the job with or without accommodation.”); see also McGregor v. National R.R. Passenger Corp., 187 F. 3d 1113, 1116 (9th Circ. 1999) (stating that a policy requiring employees to be ‘100% healed’ or ‘fully healed’ after an injury is facially discriminatory and constitutes a per se violation of the ADA).
Disabled Employees Are Entitled to an “Interactive Process”
Employers must engage in something which is called the “interactive process” with their disabled employees. This process includes taking the time to sit down with the disabled individual to determine what his or her job limitations are, and then identifying potential accommodations and assessing how effective he or she will be. See Wysinger v. Auto. Club of S. Cal., 157 Cal. App. 4th 413, 424 (2007) (“Under FEHA, an employer must engage in a good faith interactive process with the disabled employee to explore the alternatives to accommodate the disability. . . . Failure to engage in this process is a separate FEHA violation independent from an employer’s failure to provide a reasonable disability accommodation, which is also a FEHA violation.”)
The preferences of what accommodations will best suit the disabled individual should be taken into consideration, but at the end of the day it will be what is the best fit for the employee and the employer. It is also important that this “consultation” be conducted in “good faith”, meaning that both the employer and the employee have the opportunity to directly communicate with one another to make note of essential information to ensure that appropriate accommodations are made.
Job Applicants Are Not Required to Take a Medical Examination
The ADA prohibits a potential employer from asking an application or requiring an application to take a medical examination prior to making a job offer. Your employer also cannot make pre-employment inquiries about your disability, including the nature or the severity of it.
What an employer can ask are questions which pertain to one’s ability to perform specific job functions. For example, an employer can ask someone with a disability to describe or demonstrate how he or she would perform a specific task, either with or without accommodation.
Employers do also have the right to place conditions on a job offer based on the satisfactory result of a post-offer medical inquiry or examination, but only if this is a requirement of all employees who are entering the same job category. It is important to note that a post-offer inquiry or exam also does not have to be job related and that it does not need to be consistent with business necessity.
To further complicate matters, if an individual is not hired because a post-offer medical inquiry or examination reveals a disability, the reasons for not hiring that individual must be related to the job and consistent with the necessity of the business. The employer must also prove that they had no reasonable accommodation available which would allow the disabled individual to perform their essential job functions, or that the accommodation would result in undue hardship.
Contact The Los Angeles Disability Discrimination Lawyers At Azadian Law Group, PC
The fine line between disability discrimination and being passed over for a better suited applicant can be incredibly difficult and complex, but the Azadian Law Group, PC has the experience and knowledge necessary to pick out the differences and determine if you have a disability discrimination case.
Serving most of Southern California, if you believe that you have been a victim of disability discrimination, we want to hear from you. Please schedule your free consultation with us today by calling (626) 449-4944 or (213) 229-9031.