Disability Discrimination

Disability discrimination is prohibited according to the Americans with Disabilities Act (ADA) of 1990. It expands on the Civil Rights Act of 1964, which outlined prohibitions of discrimination based on other traits and qualities. Title I of the ADA specifically applies to discrimination in employment.

Pursuant to the law itself, amended here for brevity, but taken from Barclays Official California Code of Regulations, Title 2. Administration, Division 4.1. Department of Fair Employment and Housing, Chapter 5. Fair Employment and Housing Council, Subchapter 2. Discrimination in Employment, Article 9. Disability Discrimination. § 11064. General Prohibitions against Discrimination on the Basis of Disability, (b):

(b) The Fair Employment and Housing Council is committed to ensuring each individual employment opportunities commensurate with his or her abilities. These regulations are designed to ensure discrimination-free access to employment opportunities notwithstanding any individual’s actual or perceived disability or medical condition; to preserve a valuable pool of experienced, skilled employees; and to strengthen our economy by keeping people working who would otherwise require public assistance. These regulations are to be broadly construed to protect applicants and employees from discrimination due to an actual or perceived physical or mental disability or medical condition that is disabling, potentially disabling or perceived to be disabling or potentially disabling. The definition of disability in these regulations shall be construed broadly in favor of expansive coverage to the maximum extent permitted by the terms of the Fair Employment and Housing Act (FEHA). As with the Americans with Disabilities Act of 1990 (ADA), as amended by the ADA Amendment Act of 2008, the primary focus in cases brought under the FEHA should be whether employers and other covered entities have provided reasonable accommodation to applicants and employees with disabilities, whether all parties have complied with their obligations to engage in the interactive process and whether discrimination has occurred, not whether the individual meets the definition of disability, which should not require extensive analysis. Further, the interactive process requires an individualized assessment of both the job at issue and the specific physical or mental limitations of the individual that are directly related to the need for reasonable accommodation.

Federal law is law that applies to the entire country, and is able to take precedence and superiority over some state rulings and laws. According to Federal law, a disability can be defined in one of the following ways, as taken directly from the Equal Employment Opportunity Commission website:

• A person may be disabled if he or she has a physical or mental condition that substantially limits a major life activity (such as walking, talking, seeing, hearing, or learning)
• A person may be disabled if he or she has a history of a disability (such as cancer that is in remission)
• A person may be disabled if he is believed to have a physical or mental impairment that is not transitory (lasting or expected to last six months or less) and minor (even if he does not have such an impairment)

There are a few exceptions to what may be considered disabilities, though. The exceptions were made on the basis that the conditions or disabilities may result in illegal activity or have the tendency to be used as conduits to circumvent the law. These exceptions include kleptomania, exhibitionism, voyeurism, gender identity disorders, pedophilia, and more.

State law can supersede Federal law in some instances. In California, State laws regarding discrimination often provide even more protections than their Federal counterparts, allowing victims more chances to fight back against discrimination. There are also differences in degrees; for example, California does not need employees’ life activities to be substantially limited to the extent that Federal law requires.

As with Federal law, individuals in California who undergo disability discrimination must have been afflicted with either a physical disability, a mental disability, or a medical condition.

Physical disabilities include amputated limbs or body parts, disfigurement, disease, blindness, deafness, mobility impairments, cerebral palsy, HIV/AIDS, epilepsy, diabetes, multiple sclerosis, and more. Disabilities must also affect a major bodily system, such as the neurological system, immunological system, musculoskeletal system, cardiovascular system, and more.

Medical conditions consist of any genetic conditions associated with diseases or health impairments related to cancer diagnoses.

Mental disabilities include emotional and mental illnesses, intellectual and learning disabilities, autism and Asperger’s, depression, bipolar and borderline personality disorders, PTSD, obsessive-compulsive disorders, schizophrenia, and more.

In some cases, pregnancy can cause disabilities, such as being unable to walk or move without assistance. This is a special case, though, and pregnancy itself does not purely warrant disability benefits and it does not fit under disability discrimination if mistreatment occurs – it would fall under Pregnancy Discrimination.

Similarly, obesity is a special case, and it can only be considered a disability if it were caused by physiological effects, such as a thyroid condition.

Simple illnesses and injuries are not protected, such as sprains, seasonal sicknesses, minor gastrointestinal disorders, headaches, and more. Further, just like in Federal law, there are exceptions for some issues that may be considered disabilities; examples include substance abuse, sexual deviance disorders, gambling, kleptomania, and others.

There are a number of ways that you can determine if you were discriminated against. The telltale sign is treatment: if you were suddenly or chronically mistreated by your employer, boss, supervisor, or coworkers, you should consider the potential for discrimination. Most of the time, responsible individuals will deny that they targeted you because of a certain trait. It is possible to catch them in the act, though, and expose them for their statements and actions.

Here is a short list of actions that you can be on the lookout for to determine if you were discriminated against at work because of your disability:

• Mistreatment (insults, cruelty, theft, and more)
• Lowered or cut wages
• Reduction of hours or reduction of offered shifts
• Replacement by worker with less experience
• Passed over for promotions
• Fired after disclosing a condition
• Other workers have suffered similar fates for conditions
• Denied employment, training, reasonable accommodations, and more

A common example of discrimination lies in the refusal of reasonable accommodations. Cancer patients or those who have suffered chronic illnesses may need to take extra breaks, sit down a lot, or avoid heavy lifting or strenuous activities. Employers have habitually violated their workers’ rights for years and have refused to grant them such accommodations. Accommodations that are reasonable, inexpensive, and do not deter or impede the progress of the workplace must be provided. If an employer, refuses, he can be taken to court.

You should be keenly aware of any preferential treatment or different treatment towards those who are not like you.

If you have been discriminated against for your disability while at work, you should take appropriate steps to fight back.

The first step to take is to go to your Human Resources department to file a complaint and put in a notice that you were targeted because of your disability. You may have been denied a reasonable accommodation or you may have been on the receiving end of constant insults and cruel remarks. It is important that you alert the department to the mistreatment so there is a trail of evidence. You should keep an email copy or receipt showing that the complaint was filed, as well.

You should have a journal or recording of the discrimination in minute and meticulous detail. The more exact proof you have of the discrimination, the more likely your chance of success. Other pieces of evidence that could supplement or even replace a journal include photographs, video recordings, audio recordings, and emails.

There is the possibility that other coworkers at your job were similarly mistreated. You should request that these coworkers give you their stories. Similarly, you can request eyewitness, fellow worker, and bystander testimonies and reports to back up your accusations. All discrimination cases are stronger with multiple points of view and pieces of support.

The most damning evidence you can acquire would be the admittance of discrimination from the relevant parties, but sadly, that is not a common piece of proof. If you do acquire it, you should make sure to gather as much additional evidence as you can.

Once you have gotten your proof together, you can submit an inquiry and request to the Department of Fair Employment and Housing (DFEH). It is required that you send your complaint to the DFEH and not the EEOC, as state offices trump Federal offices in these situations. The DFEH will conduct a short investigation and then issue you a right-to-sue letter if your case is not thrown out.

You will then have a certain time limit to file a claim. You have 180 days from the date of the letter to sue, or 300 if there is State law that prohibits the discrimination. However, if the target of the lawsuit is a government entity, you only have 45 days to sue.

There are various parties that can be held liable for disability discrimination. If a coworker deliberately hurt you or mistreated you, causing you to lose wages and other income, the coworker can be held accountable. In most cases, the company would be held responsible and be made to pay off various losses you suffered. Your supervisor, boss, employer, company, or business should be held accountable if you were discriminated against for your disability.

A disability discrimination lawsuit can result in various types of compensation. The forms of compensation include:

• Back pay, which is reimbursement for the days you missed from work and could not make a living
• Front wages, or payment for the time you will spend without working once the lawsuit has been settled
• Lost benefits, such as health insurance and health care, dental and vision insurance, pension plans, 401k and retirement plans, and more
• Pain and suffering, or mental and emotional distresses that came about due to the effects of the case; these damages can include PTSD, anxiety, fear, and more
• Punitive damages, which are additional forms of monetary damages meant to punish the defendant since jail time is not offered in civil cases; these punitive damages are not handed out often and are viewed as excessive or harsh, so only a certain skill of lawyer will be able to win them