In 1990, Congress passed the American’s with Disability Act, more popularly known as the ADA. In 1992, the California Assembly amended the Fair Employment and Housing Act (FEHA) to reflect, and build upon, the law in the ADA. In fact, FEHA defined disability more broadly than the ADA and even said that all disabilities covered under the ADA would also be considered disabilities under FEHA.

FEHA provides more protection than the ADA in other ways too. FEHA applies to employers who employ 5 or more employees, while the ADA applies to employers who employ 15 or more. In a civil lawsuit, FEHA has no damage limitations for disability discrimination, while the ADA limits damages. The rest of this article will pertain to the laws under FEHA unless it specifically references the ADA.

The main purpose of disability discrimination laws is to provide equal access for disabled people. That applies equally to the freedom to find and maintain employment and to public access to businesses. In the employment context, employers must give disabled employees a reasonable accommodation to perform the essential functions of a job and may not discriminate against disabled employees.

As stated, an employee with a disability is entitled to a reasonable accommodation that will allow that employee to perform the essential functions of the employee’s job. The main issues are: 1) Is the employee disabled? 2) What are the essential functions of the job? 3) Is the accommodation reasonable? 4) Does the accommodation allow the employee to perform the essential functions? 5) Is the accommodation an “undue hardship” to the employer?

The term “disability” is comprised of 4 broad categories: 1) Physical, 2) Mental, 3) Medical Condition, and 4) genetic information. A physical disability is an impairment of a major bodily system that limits a major life activity. A mental disability is a mental condition that limits a major life activity. A medical condition is usually a disease that has no present symptoms but may have life limiting symptoms in the future. Similarly, genetic information often is related to a genetic condition that may lead to a greater risk of future life limiting symptoms.

Essential job functions are the fundamental functions of a position. They will vary greatly from job to job. Answering the following question can help determine what an essential function is: would the employer need to hire a new person to perform the function if the present employee were not performing that function? If the function could be handled by another present employee or distributed amongst employees, then arguably it is not an essential job function of the disabled person’s position.

A reasonable accommodation allows a disabled employee to perform the essential functions of the job and is very dependent upon the circumstances of both the employer and employee. Of course, the needs of the employee and the resources of the employer will vary greatly depending on the specifics of the employee’s disability and the business of the employer.

If an accommodation does not allow the employee to perform one or more of the essential functions of the job, then it may not be considered a reasonable accommodation. Even if the accommodation is reasonable, it still may not cause the employer an undue hardship. Courts look to the specific situation of the employer to determine if the accommodation is an undue hardship. What might be an undue burden to a small pizza shop, may not be to Coca-Cola. Some general analysis concepts are: 1) cost, 2) financial strength and size of the business, 3) the effect an accommodation will have on business operations.

An employer may not take an “adverse employment action” against an employee because that employee has a disability. In other words, an employer may fire a disabled employee for legitimate reasons, but not because of the disability. If an employer were to fire an employee because of the employee’s disability, that would be discrimination. Other types of adverse actions could be: demotion, punishment, reduction in pay, forced time off without pay, failure to accommodate, etc.

S. Ward Heinrichs, Esq.
Employment Law Office of Ward Heinrichs
4565 Ruffner Street, Suite 207
San Diego, CA 92111
858-292-0792
(858) 408-7543 (fax)