Disability Discrimination

Both the California Fair Employment & Housing Act and the Americans with Disabilities Act prohibit employment discrimination against individuals with disabilities and require employers to reasonably accommodate employees with disabilities. An employer is prohibited from firing, demoting, laying off, and denying advancement or other privileges of employment to an employee because of a disability.

In general the Fair Employment & Housing Act provides protections for individuals who have a physical disability, mental disability or medical condition (e.g., cancer), a record or history of a disability, or are “regarded as” having such. The Fair Employment & Housing Act defines disabilities fairly broadly and generally includes conditions that limit a major life activity (e.g., working, breathing, walking etc.).

The employee must be able to perform the essential functions of the job, although the employee is entitled to the assistance of a “reasonable accommodation” in order to perform these essential functions. This is an affirmative duty for the employer, and requires that the employer work with the employee to reasonably accommodate any known disability. Many types of actions should, depending on the circumstances, be taken by an employer to permit an employee to perform the essential functions of a job, including but not limited to, providing leaves of absence, making facilities accessible, altering schedules, altering non-essential elements of a job, reassigning an employee to a vacant position, or otherwise restructuring a job.

Both federal and state laws provide employees with important protections against discrimination, and go a long way towards making it possible for people with disabilities to receive fair treatment in the workplace. However, there are many ways in which the California Fair Employment & Housing Act provides greater coverage than the federal Americans with Disabilities Act. It is important to consult with a lawyer to ascertain how the two acts may impact your individual situation.

Siegel LeWitter Malkani has for years fought for the rights of employees with disabilities, including the following examples:

• Representing an employee who, unable to find a lawyer, came to Siegel LeWitter Malkani after she filed a lawsuit for discrimination based upon a mental disability. The firm took the case and, after winning a 75 page opinion denying her employer’s motion for summary judgment, was able to obtain a successful settlement.
• Representing a police officer who worked for the City of Oakland who was deaf in one ear. The City demanded that the employee retire and the firm argued that the officer could still perform the essential elements of a sergeant job, even though he could not do the portion of the job that required he be able to perform all elements of a police officer on the street. The City finally relented and promoted him to the position of sergeant, providing him with back pay and attorneys’ fees.
• Representing many employees terminated later in life, after a successful career, when the employees develop a disability that the management team, especially a new and/or younger management team, erroneously perceives as making the employees less effective. These claims are pursued as a combination of disability and age discrimination.

If you believe Siegel LeWitter Malkani could provide assistance to you regarding your potential claim for disability discrimination, please contact the firm.