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When is Reasonable Disability Accommodation Required?

Disability Discrimination , , , , ,

DisabilityBoth the Americans with Disabilities Act and the Fair Employment and Housing Act (FEHA) require employers to make reasonable accommodations for their disabled employees and job applicants. These accommodations can range between accommodations like giving the employee a special tool, providing the employee with extra breaks, or even allowing the employee to take leave or work from home.

An employee is not required to specifically ask for “reasonable accommodations” or to even figure out what the accommodation would be. The employer has a duty to engage with the employee in the process of figuring out what a reasonable accommodation would entail, this is called engaging in the interactive process.

Exceptions to Reasonable Accommodation Requirements

An employer is not required to provide reasonable accommodations in a few limited circumstances. First an employer is not required hire or employ an individual who will endanger the health and safety of themselves or others because they will be unable to perform the essential duties of the job. The essential functions of a job are the duties that are necessary due to one or more of the following:

  1. The reason the position exists is to perform the function at issue.
  2. The amount of employees available to perform that function is limited.
  3. The function is highly specialized and the individual is hired for his or her ability or expertise in performing the function.

Whether a job duty is an essential one is a fact intensive question and can bring up a significant amount of debate. In determining whether a job function is essential the following factors are relevant: the employer’s judgment, the job description, the amount of time the individual performs the job function, the work experience of past individuals in the job category, the current work experience of individuals in the job category, and the terms of any associated collective bargaining agreement.

Reasonable accommodation is also not required if an employee suffers from alcoholism and they perform alcoholism-related misconduct. For example, in the case of Gonzalez v State Personnel Bd. (1995), an employee was absent without leave on several occasions, was proved to be an alcoholic, and was justifiably terminated.

Disability discrimination is a major problem. Legally confronting it enforces your right to be free from discrimination also helps others by preventing employers from engaging in discrimination the future. To learn more about how to get monetary recovery for disability discrimination, contact employment lawyer Michelle Baker today. Schedule your free consultation by calling (858) 452-0093.

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How Long do You Have to File a Disability Discrimination Lawsuit?

Employee Discrimination , , , , , , , ,

CA Labor board claims_HOMEIf you are currently deciding whether or not to file a disability discrimination lawsuit against your current or former employer, know that there are time limitations you should be aware of regarding your legal complaint.

An employee must first receive a right to sue letter from the Department of Fair Employment and Housing (DFEH) prior to filing a disability discrimination lawsuit. An employee generally has 1 year from the time of the violation to file this charge. This 1-year period is known as the first statute of limitations. After receiving the “right to sue” letter, an employee has another 1-year period within which he or she can sue the employer. This is known as the second statute of limitations.

As with any law, there are exceptions, and they can get rather complicated. There are two major exceptions to these rules: the continuing violations doctrine and equitable tolling.

Continuing Violations Doctrine

The Continuing Violations Doctrine essentially depends on whether the incident was “discrete” or “ongoing.” The doctrine allows employees to bring a charge to DFEH more than 1 year after discrimination occurred if the charge involves continuing discrimination and is brought within 1 year after the discriminatory behavior stopped. For most one-time instances of discrimination, such as firing or failing to hire or promote, the continuing violations doctrine will not apply. The doctrine will only apply to cases where discrimination is ongoing to a specific individual, even if most of the discrimination occurred more than 1 year before filing a charge. In practice, this usually means that the 1 year period does not actually start running until the employee quits, is terminated, or the employee responsible for the discrimination is terminated or leaves.

Equitable Tolling Doctrine

The Equitable Tolling Doctrine is a principal created by judges that seeks to impose fairness on statutes of limitations. It can potentially apply in many situations; however in practice it is usually effective in two specific situations. The first is when an employee files a charge with the federal equivalent of DFEH, the Equal Employment Opportunity Commission (EEOC). If DFEH gives the employee a right to sue letter, but the employee also files a charge with the EEOC, the 1 year period does not run for the duration of the EEOC’s investigation.

The second situation is when the employee is following internal grievance procedures. For example, if an employee suffers disability discrimination, they may bring a formal grievance charge, which will prevent the 1 year period from running during the pending grievance. However, there are limitations. The grievance system must have a hearing where the employee is able to present their claim and evidence of the discrimination.

Contact a Discrimination Disability Lawyer

To learn more about your rights under disability discrimination law, call California employment attorney of Michelle Baker today. Give us a call at (858) 452-0093 or use our online submission form to schedule a Free Consultation.

 

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Disability Discrimination Lawsuits Do Not Necessarily Result in Termination

Employee Discrimination , ,

One of the most easily misunderstood topics in discrimination law—including disability discrimination and retaliation lawsuits—is what actions actually constitute discrimination. In regards to disability discrimination, the Fair Employment and Housing Act (FEHA) and the Americans with Disabilities Act (ADA) offer two different definitions for discriminatory actions.

Discrimination According to FEHA

FEHA specifically lists actions that would be discriminatory under Government Code Section 12940, subd. (a). It includes all of the following employer actions that may be motivated by an individual’s perceived disability:

  • Refusing to hire;
  • Refusing to train for a program that would lead to employment;
  • Firing from a job or training program that would lead to employment;
  • Or discriminating in the terms of employment including compensation, conditions, or privileges.

Discrimination According to ADA

ADA, on the other hand, leaves the definition of “discrimination” open to more interpretation. ADA’s list of discriminatory acts includes the above list, but also includes discrimination in regards to job application procedures and job training. Additionally, Section 12112 of ADA forbids acts based on a job applicant’s disability that limits, segregates, or classifies the job applicant in a way that would “adversely affect the opportunities or status” of the applicant.

DisabilityAn Example from the California Court of Appeals

The California Court of Appeals recently reviewed a case that showed the limits of what an adverse employment action could be under California law. In the case of Jeffrey v. Temple City, 2013 WL 501426, (Feb. 11, 2013) an employee, Randolph Jeffery, brought a disability discrimination claim under FEHA. Jeffrey was a custodian for the Temple City School District who claimed that he was terminated from the school district after receiving a serious injury from a car accident. Jeffrey claimed that he was terminated directly because of the disability he received in the car accident.

However, the School District argued that it did not in fact terminate Jeffery. Rather, they sent Jeffrey a letter saying that he would be placed on a 39-month rehiring list, and that at the end of the 39 months Jeffrey would be rehired. However, Jeffery said that he believed that he was being terminated because the title of the letter he received read: “RE: Termination of Employment.” Ultimately, the court held that getting placed on a rehiring list in this case was not an act of discrimination, because Jeffrey could not prove that he could do his job duties with reasonable accommodation, and being placed on the list was not actually a termination because he was to be rehired at a later date.

The Jeffrey case demonstrates the limits of what a discriminatory action can be, but it also demonstrates the importance of getting legal advice as soon as possible to help you understand the full extent of your rights. If you have been the victim of discrimination contact an experienced attorney right away. Contact the experienced California attorneys of Baker Law Group, LLP today for a FREE Consultation.

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Pregnant Mothers May be Entitled to More Than 19 Weeks Leave

Employee Discrimination, Wrongful Termination , , , , , ,

Pregnancy DiscriminationAn Overview of Pregnancy Leave Law:

Pregnancy Disability Leave Law (PDLL) and the California Family Rights Act (CFRA) allow women to take disability leave while pregnant and after delivery. However, even with the above-mentioned leave afforded by both acts, some women experience complications or unique situations that keep them from returning to work before the statutorily imposed time frames.

According to the California Court of Appeals, some women may now be entitled to even more pregnancy leave.

Sanchez v. Swissport

In the case of Sanchez v. Swissport, Inc., Cal. Ct. App. Feb. 21, 2013 an employee, Ms. Sanchez, was diagnosed with a high-risk pregnancy that required extended bedrest. She applied for and pregnancy leave and was granted 19 weeks of leave from her employer as required by PDLL. However, Ms. Sanchez was still unable to return to work after the leave period expired and still had 3 months to go before she could return to work. As a result, her employer terminated her position. Ms. Sanchez then filed a lawsuit based on gender discrimination, citing the employer’s failure to engage in the interactive process to determine whether she could be provided with reasonable accommodations.

Her employer argued that it was not required to provide Ms. Sanchez with additional leave because she had exhausted all leave that was required by PDLL and CFRA. However, the trial court disagreed. The employer appealed and the California Court of Appeals upheld the decision that the employer was wrong.

The Role of FEHA and CFRA

The Court ruled that simply providing 4 months of leave under PDLL does not entitle the employer to avoid the separate requirements of the Fair Employment and Housing Act (FEHA), in which an employer must provide reasonable accommodations to employees with disabilities. Ms. Sanchez argued that she would have been able to return to work shortly after delivery and that it would not have been an undue hardship on her employer. The court agreed that this in theory could have been a reasonable accommodation.

Although the court did not address the issue of CFRA, it is worth mentioning that after giving birth an employee is entitled to up to 12 weeks of leave under the CFRA in order to care for a new child.

If your employer or former employer has taken action against you or terminated you after taking pregnancy disability leave, you may be entitled to a lawsuit to recover your wages and other damages. To learn more contact the experienced California Employment Law attorneys of Baker Law Group, LLP.  Schedule a free consultation by calling (858) 452-0093 today.