Los Angeles Disability Discrimination Lawyer
"Although they have been given legal protection from discrimination, people with disabilities remain underrepresented in the labor market, despite their desire and ability to work. It is the source of constant amazement to me that some employers think they can get away with discriminating against disabled people."
- James W. Johnston, Esq. -
Disability discrimination lawyers primarily file cases using state and federal statutes that provide legal protection to employees who have been the victim of wrongful termination, harassment or discrimination because of a disability. These protections apply even to "at-will" employees, and to not require that the employee be actually terminated or demoted before bringing a claim.
Americans With Disabilities Act (ADA)
The The United States Congress passed the ADA in order to protect employees from being discriminated against because of a disability. It not only prohibits disability discrimination, but also requires employers to make reasonable accommodations to permit disabled employees to perform a job's essential functions. The ADA was enacted primarily to 1) provide a clear and comprehensive national mandate to eliminate discrimination against individuals with disabilities; 2) to provide consistent, strong, clear and enforceable standards that address discrimination against individuals with disabilities; and 3) to ensure that the federal government plays a primary role in enforcing standards set forth under the Act.
Employers Covered by ADA
The ADA covers persons or entities engaged in an industry affecting commerce with 15 or more employees on each working day in each of 20 or more calendar weeks in the current or preceding calendar year. (*however, please note that California's Fair Employment and Housing Act applies to employers with only 5 or more employees, and provides even greater protection than the ADA)
25 Years Experience
Mr. Johnston has been an attorney for more than 25 years, and has for many years represented disabled employees who have been the victims of disability discrimination. If you believe you have been terminated or otherwise discriminated against for exercising your legal rights under the ADA or the disability discrimination provisions of FEHA, please contact us to make an appointment to speak with attorney Johnston about your case.
Ask a Disability Discrimination Lawyer
If you believe you have been discharged from your employment, or otherwise discriminated against because of a medical condition or disability, you can contact attorney Johnston about your potential case, by filling out the form above, or click here to contact us.
California Fair Employment and Housing Act (FEHA)
Effective January 1, 2001, California's Fair Employment and Housing Act ("FEHA") was amended to provide significantly broader protections to employees with disabilities. The amendments include an express declaration that the California statutes are intended to extend beyond the federal ADA. Furthermore, the Act sets forth a broader definition of the term "disability," and established new and different unlawful employment practices arising from certain preemployment and post-employment inquiries. These include the failure to engage in a timely, good faith, and interactive process with the employee to determine a reasonable accommodation for the disability. The amendments are significant because they far exceed the protections afforded by the federal ADA.
California's FEHA now defines "disability" as a mental or physical condition that limits a major life activity - as compared to the ADA, which defines "disability" as a mental or physical impairment that substantially limits a major life activity. Under the amended FEHA, a mental or physical condition limits a major life activity if it makes the achievement of that life activity difficult. Moreover, major life activities are to be broadly construed to include physical, mental and social activities, and working. Additionally, under the amended FEHA, whether a condition limits a major life activity is to be determined without respect to any mitigating measures (unless the mitigating measure itself limits a major life activity).
Once again, this provision differs from federal law under the ADA, where such mitigating measures are included in determining whether an individual has a disability. Thus, the California statutory scheme expressly has rejected the United States Supreme Court's decision in Sutton v. United Airlines, Inc., 119 U.S. 2139, 2156 (1999)("the effects of [mitigating] measures - both positive and negative - must be taken into account when judging whether that person is . . . "disabled" under the [ADA].") Finally, under the amended FEHA, "working" is deemed to be a major life activity, regardless of whether the limitation implicates one particular job or a class or broad range of jobs.
As such, California's FEHA again exceeds the protections afforded by the ADA (where the limitation must implicate a class or broad range of jobs).
Employers Covered by FEHA Disability Discrimination Provisions
Generally speaking, the disability discrimination provisions of FEHA apply to employers who regularly employ in California 5 or more employees for each working day in any 20 consecutive calendar weeks in the current or preceding calendar year.
Selected Disability Discrimination Cases
Schifando v. City of Los Angeles
(2003) 31 Cal.4th 1074, California Supreme Court. Review was granted in this case, to determine whether a city employee must exhaust both the administrative remedy that the California Fair Employment and Housing Act (Gov. Code, 12900 et seq.) FEHA provides, and the internal remedy that a city charter requires before filing an FEHA disability discrimination claim in superior court.
Held: An employee need not exhaust both administrative remedies. Receiving a Department of Fair Employment and Housing "right to sue" letter is a sufficient prerequisite to filing an FEHA claim in superior court.
Bagatti v. Department of Rehabilitation
(2002) 97 Cal.App.4th 344, Third District Court of Appeals. The court held that the duty of an employer to provide reasonable accommodation is broader under FEHA than under ADA, therefore an interpretive statement of the federal Equal Employment Opportunity Commission (EEOC), interpreting the federal Americans with Disabilities Act (ADA) should not be used to interpret the FEHA. The court also held that worker's comp compensation scheme does not provide the exclusive remedy for damages arising from an employer's failure to accommodate.
Prilliman v. United Air Lines, Inc.
(1997) 53 Cal.App.4th 935, Second District, Division Seven. The court held that an employer who knows of the disability of an employee has an affirmative duty to make known to the employee other suitable job opportunities with the employer and to determine whether the employee is interested in, and qualified for, those positions, if the employer can do so without undue hardship or if the employer offers similar assistance or benefit to other disabled or non-disabled employees or has a policy of offering such assistance or benefit to any other employees.
Gelfo v. Lockheed Martin Corp.
(2006) 140 Cal.App.4th 34, Court of Appeals, Second District, Division Eight. An employer must engage in an interactive process to determine any available accommodations, not only if the employee has an actual disability, but also if the employer perceives or regards the employee as having one.
The above information is provided as a courtesy of The Johnston Law Firm, and constitutes only a brief summary of some general employment law, discrimination issues and related legal rights under California law. As such it does not constitute legal advice, and you should contact an attorney to discuss any specific employment issue you may have. For further questions, please contact our office on the forms provided.