The federal Americans with Disabilities Act (ADA), federal Family and Medical Leave Act (FMLA), California Family Rights Act (CFRA), and California’s Fair Employment and Housing Act (FEHA) provide employment protections to people with disabilities. The CFRA and FEHA are the federal laws’ counterparts but generally offer more extensive protections.
In California, employers with at least five employees, cannot discriminate against a job applicant or employee based on that person’s actual or perceived physical or mental disability, or medical or genetic condition. This means that it is unlawful for an employer to discriminate against someone even if it mistakenly believes someone to have a disability when in actuality the person does not.
Not every medical, emotional, or mental condition qualifies as a “disability”, however. Rather, the ADA and FEHA both define what is considered a “disability”, with the FEHA having a broader definition than the ADA. The FEHA recognizes three different types of disabilities and defines each one as follows:
- A physical condition, disease, disorder, cosmetic disfigurement, or missing body part that:
(a) affects any of the following body systems: neurological, immunological, musculoskeletal, special sense organs, respiratory, including speech organs, cardiovascular, reproductive, digestive, genitourinary, hemic and lymphatic, skin, and endocrine; and
(b) limits a major life activity. OR
- Any health impairment that requires special education or related services. OR
- Having a record or history of a physical condition, disease, disorder, cosmetic disfigurement, missing body part, or health impairment which the employer knows about. OR
- Being regarded or treated by the employer as having, or having had, any physical condition that makes achievement of a major life activity difficult. OR
- Being regarded or treated by the employer as having, or having had, a disease, disorder, condition, cosmetic disfigurement, anatomical loss, or health impairment that has no present disabling effect but may become a physical disability later.
- A mental or psychological disorder or condition such as intellectual disability, issue in the brain, emotional or mental illness, or specific learning disabilities, that limits a major life activity. OR
- Any other mental or psychological disorder or condition that requires special education or related services. OR
- Having a record or history of a mental or psychological disorder or condition which the employer knows about. OR
- Being regarded or treated by the employer as having, or having had, any mental condition that makes achievement of a major life activity difficult. OR
- Being regarded or treated by the employer as having, or having had, a mental or psychological disorder or condition that has no present disabling effect, but that may become a mental disability later.
- Any health impairment related to or associated with a diagnosis of cancer or a record or history of cancer. OR
- Genetic characteristics. Genetic characteristics means either of the following:
a) Any scientifically or medically identifiable gene or chromosome that is known to be a cause of a disease or disorder in a person or that person’s children, or that is determined to be associated with a statistically increased risk of development of a disease or disorder, even though the person does not presently have any symptoms. OR
b) Inherited characteristics that are known to be a cause of a disease or disorder including in the person or their offspring, or that are determined to be associated with a statistically increased risk of development of a disease or disorder, even though the person does not presently have any symptoms.
Disability Definition from FEHA
You may have noticed that in order for a physical or mental condition to qualify as a “disability” under the FEHA, it must “limit a major life activity.” This means that the physical or mental condition must make it difficult for the person to do basic life activities such as working, walking, eating, sleeping, and engaging in normal social activities.
It is important to note that there are many conditions that affect major life activities but are not considered “disabilities” by the FEHA. These include: the common cold, the common flu, minor cuts or abrasions, sprains and strains, soreness, bruises, regular headaches, muscle aches, upset stomach, obesity, gambling addiction, kleptomania, pyromania, certain sexual behavior disorders (such as pedophilia). However, if any of these things is a symptom of a condition defined as a disability above, then it may be covered under the FEHA.
Reasonable Accommodations Offered by Employer
Despite the disability, the job applicant or employee must still be able to perform the job’s essential functions with “reasonable accommodations” provided by the employer. California law requires employers to make reasonable accommodations for applicants and current employees with disabilities as long as making such accommodations is not unreasonably hard or expensive. Employees and applicants must generally be proactive about asking for reasonable accommodations and bring it up to their current or prospective employer. Employers are required to consider the applicants’ or employees’ requests and try to work with the employee or applicant to arrive at a solution. This is called the “interactive process.” If, however, an employer already knows about the employee’s or applicant’s disability, the employer, not the employee, has the obligation to start the interactive process.
Common reasonable accommodations include:
- Assigning the employee to a different job position;
- Modifying the employee’s work schedule and/or allowing them time to go to medical appointments;
- Allowing the employee more time to complete tasks;
- Providing electronic or mechanical aids;
- Changing the employee’s work station (such as moving furniture and equipment around, adjusting the desk height, adding grab bars or handles, and providing special seating);
- Granting the employee medical leave.
Disabilities and the Hiring Process
The FEHA also prohibits employers from asking persons with disabilities about their disability prior to making a job offer. The only thing an employer may ask an applicant is whether the applicant is able to perform the essential functions of the job. For example, if the applicant is applying for a position as a UPS driver, the employer may lawfully ask if the applicant is able to lift items that weigh 25lbs. The inquiries, however, must be related to the job being applied for, consistent with the employer’s business needs, and be asked to all applicants for the same job.
When a disability is obvious and the employer reasonably believes the applicant needs reasonable accommodation, or when an applicant asks for a reasonable accommodation, whether before or after a job offer, the employer is entitled to inquire about the applicant’s disability, but only for the purpose of understanding how to best accommodate the person. The employer, however, must not disclose information about the person’s disability to anyone, with some limited exceptions.
Once an employer makes a job-offer to someone with a disability, the employer may require questions or tests/examinations about physical or mental conditions, as long as they are job- related and consistent with the employer’s business needs.