The legal rights of disabled Americans have come a long way in the last fifteen years. After years of struggling for equality, the rights of disabled individuals in America are protected and ensured by a complex network of both Federal and State laws. The Federal Americans with Disabilities Act (“ADA”) was enacted in 1990 to protect employment opportunities for qualified individuals with disabilities. The ADA prohibits discrimination by private and public employers and requires employers to provide “reasonable accommodations” to their disabled employees.

California provides broader protection than the ADA

In California, the Fair Employment and Housing Act (“FEHA”) (Gov.C. § 12900 et seq.) prohibits employment discrimination on the basis of 'physical disability, mental disability and medical condition.
The FEHA provides broader protection than the ADA in certain important areas, including:

(1) Applies to smaller employers: The ADA applies only to employers with 15 or more employees. In contrast, the FEHA applies to employers with five or more employees. (Gov.C. § 12926(d))

(2) Limitation on major life activity need not be 'substantial': The ADA limits its coverage to physical or mental conditions that 'substantially limit' a major life activity. The FEHA requires only that the disability 'limit' such activity: 'This distinction is intended to result in broader coverage under the law of this state than under that federal Act.' (Gov.C. § 12926.1(c),(d)(2)) This is a significant difference between the two Acts and makes it much easier in California to qualify as being “disabled.”

However, neither the ADA or FEHA guarantees employment for the disabled and provides that disabled employees must be able to perform the “essential functions” of their job to obtain protection under the law. As a result, one of the most commonly litigated elements of a disability discrimination lawsuit is whether the plaintiff is capable of performing the “essential functions” of the job, with or without accommodation.

What are the elements of a disability discrimination claim?

To prevail in an ADA action, a plaintiff must establish that he or she:

• has a 'disability'
• is a 'qualified individual' capable of performing the essential functions of the job either with or without reasonable accommodation
• • was unlawfully discriminated against because of his or her disability

What is a “disability”and do I qualify for protection under the ADA?

'Disability' is a term of art under the ADA and is defined as follows:

• (A) a physical or mental impairment that substantially limits one or more major life activities
• (B) a record of such an impairment
• (C) being regarded as having such an impairment

Any of the following conditions may be considered a disability under the ADA if they substantially limit a major life activity:

• Orthopedic, visual, speech and hearing impairments
• Cerebral palsy, muscular dystrophy or multiple sclerosis
• Difficulty in breathing due to chemical sensitivity
• AIDS (including asymptomatic HIV)
• Cancer, heart disease and other terminal illnesses
• Impotence: At least one court has held that sexual dysfunction resulting from mental or physiological problems constitutes a 'disability' because it substantially limits the major life activity of sexual relations (McAlindin v. County of San Diego (9th Cir. 1999) 192 F3d 1226, 1234)
• Carpal tunnel syndrome: The wrist disorder known as carpal tunnel syndrome is a physical impairment. (See Toyota Motor Mfg., Kentucky, Inc. v. Williams (2002) 534 US 184, 196, 122 S.Ct. 681, 690-691)

However, symptoms of carpal tunnel syndrome vary widely from person to person, and so an individualized assessment is necessary to determine whether it 'substantially limits a major life activity' within the meaning of the ADA . (Toyota Motor Mfg., Kentucky, Inc. v. Williams, supra, 534 US at 199, 122 S.Ct. at 692)

• Asymptomatic HIV qualifies as a physical impairment from the moment of infection. (Bragdon v. Abbott (1998) 524 US 624, 637, 118 S.Ct. 2196, 2204)
• Diabetes is a physical impairment under the ADA 'because it is a physical condition affecting the digestive, hemic, and endocrine systems.' (Fraser v. Goodale (9th Cir. 2003) 342 F3d 1032, 1038--but not every diabetic is disabled--the condition must 'substantially limit' a 'major life activity')
• Irritable bowel syndrome that is 'chronic, incurable and unusually severe' was held to be a disability because it periodically incapacitated plaintiff and thus substantially limited his life activity of working. (Maziarka v. Mills Fleet Farm, Inc. (8th Cir. 2001) 245 F3d 675, 679–However, plaintiff did not obtain recovery under the ADA because he could not show he was qualified to perform job with reasonable accommodation).
• Asthma. (Rinehimer v. Cemcolift, Inc. (3rd Cir. 2002) 292 F3d 375, 380)
• Allergic reactions in certain circumstances

Does my employer have a duty to accommodate my disability?

Yes, employers are required under both the ADA and FEHA to provide reasonable accommodation for the known disabilities of applicants and employees to allow them to perform a position's essential functions. However, an employer is not required to do so if the accommodation would be an undue hardship to the employer's operations.

The type of accommodation required is a very individualized analysis that is determined on a case-by-case basis and depends on the type of disability involved and the type of work performed by the employer.

The FEHA provides a nonexhaustive list of possible accommodations:

• Making facilities accessible to and usable by disabled individuals
• Job restructuring
• Offering part-time or modified work schedules
• Reassigning to a vacant position
• Acquiring or modifying equipment or devices
• Adjusting or modifying examinations, training materials or policies
• Providing qualified readers or interpreters
• Other similar accommodations for individuals with disabilities.

An interactive process is required

When an employee requests an accommodation, the law requires an employer to engage in a “good faith interactive process” in selecting an appropriate accommodation.

Under FEHA, the employer must engage in a 'timely, good faith interactive process ... in response to a request for reasonable accommodation by an employee or applicant with a known physical or mental disability or known medical condition.' [Gov.C. § 12940(n). If your employer has not engaged in an interactive process with you after a request for accommodation, you may have a cause of action. Contact our attorneys for a FREE case evaluation.

Are there time limits in which I must take action?

Yes. There are Statutes of Limitation that vary from jurisdiction to jurisdiction. Moreover, there are pre-suit administrative remedies that must be exhausted before filing suit on a federal ADA claim or a California state law claim under the FEHA. For example, a claim must be made under federal law to the Equal Employment Opportunity Commission (EEOC) and to the Department of Fair Employment and Housing (DFEH) under California law before a lawsuit may be commenced. Failure to follow these specific administrative procedures may result in your claim being time barred. Our experienced trial attorneys have successfully litigated these types of claims in multiple jurisdictions. Contact us today for a FREE case evaluation.

California Department of Fair Employment and Housing

www.dfeh.ca.gov

ADA Resources

www.usdoj.gov/crt/ada/adahom1.htm
www.access-board.gov/adaag/html/adaag.htm
www.jan.wvu.edu/links/adalinks.htm