The Fair Employment and Housing Act (“FEHA”) outlaws workplace discrimination on account of physical or mental disability. A disability protected from unlawful discrimination may be a physical or mental disability that limits a major life activity, including, for example, work. Physical disabilities include loss of limb, eye sight, hearing or speech, AIDS, hepatitis, epilepsy, seizure disorders, clinical depression, diabetes, multiple sclerosis, heart disease, etc. Mental disabilities include any mental or psychological disorder, such as mental retardation, organic brain syndrome, emotional or mental illness and specific learning disabilities. FEHA also outlaws discriminating against an employee if they are perceived to have a disability, even if they are not so disabled. Proof of disability discrimination may be direct, i.e., employer statements explicitly referring to a disability, or indirect and circumstantial, i.e., inferred by the facts and the surrounding circumstances. An employee who cannot produce direct evidence of disability discrimination may nevertheless create an actionable inference of disability discrimination by making out a so-called prima facie case, usually as follows:
- The employee is in the protected class, e.g., he or she has or is perceived to have a particular disability.
- The employee was treated adversely in the workplace, e.g., fired, harassed, denied promotion because of the particular disability even though he or she was qualified, with or without reasonable accommodation of the disability.
- Employees in the same classification who were not disabled or perceived to be disabled were not treated adversely, or the employee was replaced by someone who is not disabled or perceived t be disabled.
Disability discrimination may also be inferred by statistics. In addition, even if the employer tries to explain the adverse employment decision as being the result of a supposedly “legitimate” business decision,” e.g., the employee was purportedly not meeting job performance standards, an employee may adduce evidence demonstrating that the employer’s so-called “legitimate business reason” was a “pretext'” or a ruse, designed to “mask” the true reason for the adverse employment decision, i.e., disability discrimination. Employees can rebut or counter a pretextual, so-called “legitimate business reason,” by showing that (1) the supposed “legitimate business reason” does not make business sense, (2) non-disabled employees in the same situation were not subjected to the same adverse treatment or (3) the employer has given multiple or inconsistent explanations for the adverse employment decision which suggest dishonesty. Evidence of disability discrimination may also include the employer’s failure to reasonably accommodate the employee’s disability, e.g., modified assignments or time-off if recommended by a health care professional.
Quick action is usually required when an employee suspects he or she may have been subjected to disability discrimination because in most cases the employee must file a complaint with the Department of Fair Employment and Housing within one year. Early action is also advisable in order to preserve evidence that would be critical in proving a claim, e.g., witness statements, depositions, documentary evidence and personnel records.
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