Medical Condition Discrimination
The Fair Employment and Housing Act (“FEHA”) outlaws workplace discrimination on account of medical condition, which is defined as (1) cancer or cancer-related condition, an identifiable gene or chromosome, or an inherited characteristic known to increase the statistical risk of a particular disease or disorder not presently associated with any symptoms of any disease or disorder, e.g., HIV positive. Proof of medical condition discrimination may be direct, i.e., employer statements explicitly referring to a medical condition, or indirect and circumstantial, i.e., inferred by the facts and the surrounding circumstances. An employee who cannot produce direct evidence of medical condition discrimination may nevertheless create an actionable inference of medical condition 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 a particular medical condition.
- 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 did not have the medical condition were not treated adversely, or the employee was replaced by someone who did not have the medical condition.
Medical condition 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., medical condition 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) employees who did not have the medical condition 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 medical condition discrimination may also include the employer’s failure to reasonably accommodate the employee’s medical condition, 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 medical condition 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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