Disability Discrimination and Reasonable Accommodation under the FEHA

1. Disability Discrimination and Reasonable Accommodationunder the FEHA Phyllis W. Cheng | Directors California Department of Fair Employment and Housing www.dfeh.ca.gov

2. oVERVIEW Introduction. Disability discrimination under the FEHA. Comparing FEHA, ADA and ADAAA. New amendments to the FEHA disability regulations. Interactive process. Reasonable accommodation. Potential defenses and limits to liability. Best practices.

3. Introduction The DFEH’s civil rights mission. Statutes enforced: Fair Employment and Housing Act (FEHA) (Gov. Code, § 12900 et seq.). Unruh Civil Rights Act (Civ. Code, § 51 et seq.). Ralph Civil Rights Act (Civ. Code, § 51.7). Disabled Persons Act (Civil Code, § 54 et seq.). Jurisdiction.

4. 2011 DFEH Complaints Filed by Bases

5. 2011 DFEH Accusations Issued

6. FEHA DISABILITY DISCRIMINATION FEHA protects: Applicants. Employees. Contractors. From disability discrimination in: Employment. Training program leading to employment. Compensation, terms, conditions, privileges of employment. (Gov. Code, § 12940, subd. (a).)

7. FEHA DISABILITY DEFINED • Physical or mental impairment that “limits” a major life activity; • Record of such an impairment; or • Regarded as having or having had such an impairment, or is regarded or treated as having an impairment that has no present disabling effect but might become a future disability. (Gov. Code, §§ 12926, subds. (i), (k) & (l), 12926.1, subds. (c) & (d).) Definitions of physical and mental disabilities are to be broadly construed. (Gov. Code, § 12926.1, subd. (b).)

8. WHAT IS NOT A DISABILITY? • Current illegal drug use. • History of criminal behavior. • Compulsive gambling. • Sexual behavior disorders or a history of sex offenses. • Kleptomania. • Pyromania.

9. MITIGATION • Mitigating measures are not considered under the FEHA in determining whether an individual has an impairment that “limits” a major life activity unless the mitigating measure itself limits a major life activity. (Gov. Code, §§ 12926, subds. (i)(1)(A) & (l)(1)(B), 12926.1, subd. (c).)

10. Limitation • FEHA requires that the physical or mental condition “limits” one or more major life activities, making “the achievement of the major life activity “difficult.” (Gov. Code, §§ 12926, subds. (j) & (l), 12926.1, subd. (d).)

11. MAJOR LIFE ACTIVITY • Major life activities are to be “broadly construed” and include physical, mental, and social activities and working. (Gov. Code, §§ 12926, subds. (j) &(1), 12926.1.) • An employee’s impairment need affect only a particular job, not a class or broad range of employment, to “limit” the major life activity of “working.” (Gov. Code, § 12926.1, subd. (d).)

12. Episodic conditions • Specifically states that chronic or episodic conditions are covered as disabilities. (Gov. Code, § 12926.1, subd. (c).)

13. Regarded as having disability • FEHA still focuses on an employer’s perception. An individual is protected if s/he is “regarded or treated as” having or having had any physical or mental condition that • (1) makes achievement of a major life activity difficult; or • (2) has no present disabling effect but may become a future qualifying physical or mental condition. (Gov. Code, § 12926, subds. (j)(4)-(5) & (l)(4)-(5).) • There is no durational limit to be a disability in FEHA. Note that FEHA provides that when the ADA’s definition of “disability”

14. construction • FEHA provides protections independent of ADA, containing broad definitions of what is considered a disability. (Gov. Code, § 12926.1.)

15. NEW FEHC Disability Regulations • Define mental and physical disability broadly to include any disorder that affects a person’s mental or bodily functions and limits a major life activity. • “Limiting” a major life activity means the condition makes achieving a major life activity “difficult.” • New examples of disabilities include: autism spectrum disorders, clinical depression, post-traumatic stress disorder, obsessive compulsive disorder, cerebral palsy, HIV/AIDS, seizure disorder, multiple sclerosis, and heart disease. • Define and provide examples of perceived disability, medical condition, and genetic characteristics. • Provide standards for determining when a job function is essential, as well as examples of potential reasonable accommodations (e.g., bringing assistive animals to work, altering when and how essential functions are performed, making exception to company policy, and permitting employees to work from home.) • Provide that disability can be proven if one factor influenced employer to deny a employment benefit. • Assistive animals defined.

16. Intellectual Disability SB 1381(Pavley): Mental retardation. Changes “mental retardation” to “intellectual disability” among the enumerated definitions of “mental disability.” It is the intent of the Legislature that the bill not be construed to change the coverage, eligibility, rights, responsibilities, or substantive definitions.

17. NEW FEHC Pregnancy Regulations Expand definition of “disabled by pregnancy” under non-exclusive list of medical conditions related to pregnancy; Clarify definition of “four months” of leave to mean 17 1/3 weeks; Clarify employer responsibilities regarding reasonable accommodations and transfers; Add prohibitions against “perceived pregnancy” discrimination or harassment; Identify new notices required to be posted and given to employees affected by pregnancy for employers with less than 50 employees (Notice A), and employers with 50 or more employees (Notice B); Require employers, who choose to require medical certification the employee, to notify the employee in writing and provide a form for the medical provider to complete. Employers may develop their own form or use the template in the regulation.

18. Keys to the FEHA’s Broad Disability Protections • Interactive Process: An employer is required to engage in a good faith, interactive process to determine an appropriate reasonable accommodation. Failing to do so constitutes an independent FEHA violation.

19. Elements of Disability Discrimination

20. Disability Discrimination Elements • Employee’s actual or perceived condition qualifies as a physical or mental disability. • Adverse action against the employee. • Employee is otherwise qualified to perform the essential functions of the job. • Causal link: The employee was subjected to the adverse action because of his or her disability.

21. Hypothetical #1 • A long time IT worker, who had not previously notified her employer that she was disabled, informs her supervisor that she suffers from carpal tunnel syndrome and needs an accommodation to continue working. Her supervisor is surprised since she had never reported this “disability” before. • Does the employee have a disability under the FEHA?

22. Reasonable Accommodation Discrimination Elements • Employee’s actual or perceived condition qualifies as a physical or mental disability. • Employee is capable of performing the essential functions of the job with or without a reasonable accommodation. • Reasonable accommodation requirement is triggered. This is the notice requirement. • Adverse action – Reasonable accommodation not provided by employer.

23. REASONABLE ACCOMMODATION: Exceptions • Employee must be able to perform “essential job functions.” • Fundamental job duties of the employment position. • Employer must provide accommodation unless it can demonstrate undue hardship. • “Undue hardship” is an action requiring significant difficulty or expense by an employer in providing an accommodation. • Nature and net cost of the accommodation; • Overall financial resources and size of employer; • Employer’s type of operation; and • Geographic separateness of facility.

24. Defenses • Essential Functions: An employer may, however, refuse to hire or may discharge an employee if, even with reasonable accommodations the employee, because of his or her disability, either is unable to perform the essential duties or cannot perform them without endangering the health or safety of the employee or others. (Gov. Code, § 12940, subd. (a)(1)-(2).) • Undue Hardship: The FEHA provides that an employer must provide reasonable accommodation for the known physical or mental disability of an applicant or employee unless to do so would create undue hardship for the employer.

25. What Accommodations are Reasonable under the FEHA? • Job restructuring or re-allocation of duties. • Adjustment of work hours. • Providing tools, equipment, supplies, etc.. • Modifying policies. • Leave of absence. • Reassignment to vacant position. If reassignment is needed, the employer must take affirmative steps to determine whether a position is available – the employer’s in the best position to know this information. (Spitzer v. Good Guys, Inc. (2000) 80 Cal.App.4th 1376, 1389.)

26. Unreasonable Accommodations under the FEHA • Create a new job. • Move another employee. • Promote the disabled employee. • Violate another employee’s rights. • Reassign the disabled employee to a position that is not funded and not vacant. (Raine v. City of Burbank (2006) 135 Cal.App.4th 1215, 1223.)

27. The FEHA’s Timely, Good Faith, Interactive Process • Timely: Applies to both the employee and employer, neither can delay. • Good Faith: Direct communication between the employer and employee, with a willingness to exchange essential information. • Interactive: The employer consults with the employee to ascertain the precise job-related limitations, and how these limitations can be effectively overcome with a reasonable accommodation.

28. What Would Trigger the FEHA Interactive Process? • An employee directly asking for an accommodation (either orally or in writing). • The employee’s representative asking on the employee’s behalf (such as the employee’s doctor, spouse or union rep.) • Employee states he’s having difficulty getting to work on time because of the medical treatment of his health condition. • Employee’s spouse calls and tells employer that employee has had a medical emergency because of his cancer and needs to take five weeks off. • Employee’s doctor sends a letter stating that employee can’t lift more than 50 pounds.

29. What Would Not Trigger the FEHA Interactive Process? • Employee mentions disability but does not inform employer of any specific limitation (and none is readily apparent to employer). • Employee requests an accommodation but doesn’t mention any disability (and employer has no reason to know of the disability) . • Employee mentions inability to perform specific task, but does not request an accommodation or mention that inability is tied to a disability. • Employee makes threats of violence against a supervisor or co-worker.

30. Hypothetical #2 • An employee with a mental disability that the employer was unaware of sues his employer for disability discrimination because the employer never offered the employee an accommodation. Does the employee have a valid claim?

31. Common Employer Reasonable Accommodation Mistakes • Assuming worker’s compensation is the exclusive remedy for work related injuries. (City of Moorpark v. Superior Court (1998) 18 Cal.4th 1143.) • Following a “100%” healthy rule before an employee can return to work. • Failure to consider vacant positions.

32. Common Employer Reasonable Accommodation Mistakes • Claiming that an employee cannot perform the essential functions of the job when, in fact, the employee was performing the job either with or without an accommodation. • Refusal to grant a reasonable accommodation due to an inflexible reliance on company rules.

33. Common Employer Reasonable Accommodation Mistakes • Asserting an essential functions defense based on a job description that does not accurately reflect the employee’s actual job. • Asserting an essential functions defense without considering the ease of certain accommodations, such as assistance from co-workers or tools.

34. Common Employer Reasonable Accommodation Mistakes • Assuming worker’s compensation is the exclusive remedy for work related injuries. (City of Moorpark v. Superior Court (1998) 18 Cal.4th 1143.) • Following a “100%” healthy rule before an employee can return to work. • Failure to consider vacant positions.

35. Common Employer Reasonable Accommodation Mistakes • Claiming that an employee cannot perform the essential functions of the job when in fact, the employee was performing the job either with or without an accommodation. • Refusal to grant a reasonable accommodation due to an inflexible reliance on company rules.

36. Common Employer Reasonable Accommodation Mistakes • Asserting an essential functions defense based on a job description that does not accurately reflect the employee’s actual job. • Asserting an essential functions defense without considering the ease of certain accommodations, such as assistance from co-workers or tools.

37. Hypothetical #3 • An employee of a Fortune 500 company notifies her supervisor that she suffers from a slipped disk in her back, and requests that she be provided a special chair to allow her to sit without pain. The employer refuses to provide the chair she requests, but tells her she can look through the company’s storage and take any chair she finds. • Has the employer discriminated based on disability?

38. Best practices • Review policies and procedures. • Training. • Hire the best person regardless of disability or perceived disability. • Engage in the interactive process. • Consider all reasonable accommodation options.

39. www.dfeh.ca.gov contact.center@dfeh.ca.gov (800) 884-1684 Videophone (916) 226-5285