Unfortunately, disability discrimination is on the rise.  However, the Disability Discrimination Lawyers of Helmer Friedman LLP have extensive knowledge in this area of law.   Both California and Federal law not only prohibit disability discrimination and harassment but also require employers to provide reasonable accommodations for people with disabilities.

Under the California Fair Employment and Housing Act (“FEHA”), employers are generally prohibited from discriminating against people with disabilities. An employer who discriminates against a person because of his/her disability may do so only if the employer can demonstrate that:

• The person is unable to perform the essential functions of the job, and no reasonable accommodation exists that would enable the person to perform the essential functions of the job.
• The person would create an imminent and substantial danger to himself/herself or a substantial danger to others by performing the job, and no reasonable accommodation can be made to remove or reduce the danger.

The following two reasons are not legally acceptable excuses for discrimination: (1) There is a possibility of future harm to the person or to others; (2) That employing individuals with a disability will cause an employer’s insurance rates to rise.

When an employee has a disability, the employer must explore all possibilities of reasonable accommodation prior to rejecting the person for a job or making any employment-related decision. An accommodation is reasonable if it does not impose an undue hardship on the employer’s business. Reasonable accommodation can include, but is not limited to, the following:

• Changing the job duties
• Changing the work shift
• Providing leave for medical care
• Accommodating work schedules
• Relocating the work area
• Providing mechanical or electrical aids
• Reassigning to an available vacant position

An employer may obtain help from government agencies and outside experts to determine whether accommodation is possible. Disabled employees may have separate rights to unpaid leave under the Federal Family and Medical Leave Act or the California Family Rights Act.

Under the California Fair Employment and Housing Act, when interviewing job applicants, employers may not ask (verbally or on an employment application) questions about the applicant’s health or medical history. Employers may ask about an applicant’s ability to perform specific tasks. Also, employers may not inquire whether the applicant has ever filed a Workers’ Compensation claim.

Under the California Fair Employment and Housing Act, medical examinations of applicants are only allowed after a conditional job offer has been made. Post-offer medical examinations are permissible only where all entering employees in similar positions are required to submit to such exams and the results are treated as confidential medical records and maintained on separate forms. In addition, no post-offer pre-employment inquiry is permitted unless it is directly related to and pertinent to the position being applied for or directly related to whether an individual would endanger himself/herself or others.

Persons must not be excluded from a job because of a generalization about any disability. Each person must be judged solely on whether his/her particular medical history and condition presently prevents him/her from performing the job safely and efficiently. Any medical standard or employment policy which automatically excludes entire groups of people (such as all people with high blood pressure, diabetes, AIDS, or back problems) is usually improper. It is further an unlawful employment practice for an employer or other covered entity to subject, directly or indirectly, any employee, applicant, or other person to a test for the presence of a genetic characteristic.

Under federal law, Title I of the Americans with Disabilities Act of 1990 (“ADA”) prohibits private employers, state and local governments, employment agencies, and labor unions from discriminating against qualified individuals with disabilities in:

• Job application procedures
• Hiring, firing
• Advancement
• Compensation
• Job training
• Other terms, conditions, and privileges of employment

The Americans with Disabilities Act covers employers with 15 or more employees, including state and local governments. It also applies to employment agencies and to labor organizations. The Americans with Disabilities Act’s nondiscrimination standards also apply to federal sector employees under section 501 of the Rehabilitation Act, as amended, and its implementing rules. An individual with a disability is a person who:

• Has a physical or mental impairment that substantially limits one or more major life activities
• Has a record of such an impairment
• Is regarded as having such an impairment

A qualified employee or applicant with a disability is an individual who, with or without reasonable accommodation, can perform the essential functions of the job in question. Reasonable accommodation may include, but is not limited to:

• Making existing facilities used by employees readily accessible to and usable by persons with disabilities.
• Job restructuring, modifying work schedules, reassignment to a vacant position.
• Acquiring or modifying equipment or devices, adjusting or modifying examinations, training materials, or policies, and providing qualified readers or interpreters.

An employer is required to make a reasonable accommodation to the known disability of a qualified applicant or employee if it would not 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 factors such as an employer’s size, financial resources, and the nature and structure of its operation.