In California, people are protected from discrimination and harassment on the basis of an actual or perceived disability.

At Gutiérrez Legal Law Firm, we know that each situation is unique and that your conditions and situation require a personal approach. We are a labor law firm that fights for people’s rights every day.

What is a disability covered by the law?

In California, you are considered disabled if you have a condition that limits one or more major life activities, that is, the condition or disability limits (makes it more difficult) your ability to participate in a major life activity, such as breathing, watching , walk, take care of yourself, work, socialize, read, eat, digest, hear, speak, etc. Disabilities can be physical or mental, such as developmental disorders, organic brain syndrome, emotional or mental illnesses, or specific learning disabilities. They can be obvious, like being in a wheelchair, using a cane, being disfigured or having a part of the body amputated, or they can be subtle like heart problems, breathing difficulties, depression, anxiety, gastrointestinal difficulties, sleep apnea, etc.

To be considered a disabling condition, a disability or limitation must be or be perceived as lasting or permanent. Temporary disabilities may provide leave under the California Family Rights Act or the Family and Medical Leave Act.

What are your legal rights?

A disabled person who is qualified (has the education, training, etc., required by the position) to perform essential job functions, with or without accommodation, should be treated equally with all other applicants and / or employees.

Essential job functions are those basic job functions required by the position. For example, the essential job functions of a firefighter include being able to run, lift, and carry. Also, pilots require visual ability as a bona fide occupational qualification. A person whose disability prevents them from possessing these skills is not otherwise qualified.

An accommodation is any tool, device, equipment, assistance, and / or modification of a non-essential job function that makes it possible, or easier, for a person with a disability to perform essential job functions. Examples include larger computer monitors or manual or electronic readers for the visually impaired, TTD devices for the deaf, sign language interpreters, modification of facilities and workstations for wheelchair access, flexible hours, telecommuting, using animal assistants, restructuring non-essential functions, allowing time for medical appointments, etc. What are your legal rights?

A disabled person who is qualified (has the education, training, etc., required by the position) to perform essential job functions, with or without accommodation, should be treated equally with all other applicants and / or employees.

Essential job functions are those basic job functions required by the position. For example, the essential job functions of a firefighter include being able to run, lift, and carry. Also, pilots require visual ability as a bona fide occupational qualification. A person whose disability prevents them from possessing these skills is not otherwise qualified.

Employer responsibilities towards disabled people

Employers are required to provide reasonable accommodations. They do not have to provide an employee’s preferred accommodations and only have to provide accommodations that do not create undue hardship on the economy and / or operation of the employer’s workplace. Whether an accommodation is reasonable or poses undue hardship to the employer takes into account the size and financial capacity of the employer, as well as the cost, expense and disruption associated with the accommodation.

The law requires that once an employer learns of an employee’s disability and / or any workplace difficulties associated with a disability, the employer and employee have a duty to participate in an interactive process in good faith to discuss possible accommodations. An employer who does not engage in an interactive process in good faith is violating the law and may be subject to damages for their violation of the law.

An employee also has a duty to participate in the accommodation process in good faith. To that end, an employer may request a medical certificate of disability and may attempt to interact with the employee’s medical providers as part of the reasonable accommodation process to determine what would be an appropriate accommodation. Employees who do not engage in an interactive process in good faith and who lose their job as a result are not entitled to recovery.

If there is a breakdown in the interactive process leading to dismissal or demotion, the courts look to see who was responsible for the breakdown. Therefore, in any situation where you interact as part of an accommodation process, it is important to document your participation in writing. You should send a copy of that documentation to your supervisor or to the human resources department.

Employers cannot discriminate against current or potential employees on the basis of a disability. They cannot ask as part of a pre-employment questionnaire if you are disabled. An employer who has offered her a position may ask if she needs accommodations.

An employer may refuse to offer you a job or remove you from a job if her disability creates a legitimate risk to the health of others. For example, it has been considered legal to exclude epileptics who experience seizures when operating buses, trains, etc., due to legitimate health risks. However, these risks must be legitimate and not merely speculative.

Alcoholism and drug addiction under the disability law

Alcoholism and drug addiction are disabilities recognized by law. However, the use of alcohol or drugs in the workplace, that is, being drunk or under the influence of drugs, or missing work or being late due to a hangover / binge is not considered a reasonable accommodation and may subject you to immediate dismissal. On the other hand, treatment for alcoholism or drug addiction may be considered a reasonable accommodation.

The key is to seek help before you are fired for the behavior. An employer cannot discriminate against or harass someone because of their recovering alcohol / drug addict status. Therefore, an employer who learns that an employee is attending AA or NA meetings cannot demote, fire, or take adverse employment action due to the employee’s status as a recovering alcoholic / addict. In fact, permission to attend meetings / therapy may be a reasonable accommodation.

After an accommodation is requested

If you tell an employer that you are disabled, you have the right to a reasonable expectation that your employer will keep that medical information confidential and distribute it only to people who need to engage in a good faith interaction or provide an accommodation.

It is illegal to retaliate against an employee who requests an accommodation. If you feel you have been retaliated against, document it in writing and submit a complaint to your management and / or human resources.

Can you resign if the conditions are intolerable?

The law recognizes that sometimes conditions get so bad that people have no reasonable alternative but to quit their job instead of enduring continued illegal behavior. An employee cannot just quit and sue over a simple incident. The conditions must be of such severity and frequency that a reasonable person would think there is no alternative and that, in fact, they were constructively dismissed. First of all, he should report the conditions through his company’s complaint procedure, whenever possible, before resigning or reducing his rights to recover damages.

What to do if you have been treated illegally

Many companies have policies on anti-discrimination and harassment in their company manuals. They may also require you to follow a certain communication channel when requesting an accommodation and / or reporting harassment, discrimination and / or retaliation. You must follow these procedures and document your actions in writing. Failure to follow these procedures can lead to the denial of your legal right to recover certain damages, such as punitive damages. You have a limited period of time to act and protect your rights.

Contact our disability discrimination attorneys today

If you believe you are being discriminated against or harassed because of your disability, call the Gutierrez Law Firm (866) 473-1773 for a free case evaluation today.

Individuals who have suffered illegal conduct in California in violation of their rights under the Fair Housing and Employment Act (such as discrimination and / or harassment based on membership in a protected classification) should file a complaint with the Department of Housing and Employment. Fair (DFEH). ) generally within one year of the conduct (there are limited exceptions in some cases) or they may lose their right to take legal action. Forms and information about the DFEH complaint process can be found at http://www.dfeh.ca.gov.