January 2004                                                                                                     CAAAments (Published by the California Applicants' Attorneys Association)

The Rights Of Applicants Under Fair Employment Laws                                       By Harvey Sohnen, Esq.

In the opening section of the Americans with Disabilities Act of 1990 (“ADA”), Congress recognized that some “43,000,000 Americans have one or more physical or mental disabilities.” This group is protected from employment discrimination by laws in California and many other states, as well as the federal ADA. The recent trend in California courts has been to afford a broad interpretation in favor of an employee’s rights under California law, the Fair Employment and Housing Act (FEHA), Government Code Section 12926 et al. Along the same lines, the California legislature in 2000 enacted A.B. 2222, (the “Prudence Kay Poppink Act”), to reinforce a broad definition of “disabled” under the FEHA. Employees with work-related injuries have rights that are protected by these important laws. With legislative changes to the entire structure of Vocational Rehabilitation benefits on the horizon, it will become particularly important to focus on injured workers’ rights to accommodation to allow them to return to their pre-injury line of work.

FEHA covers employers regularly employing five or more employees, but excludes religious associations or religious non-profit corporations. FEHA makes it an “unlawful employment practice” to discriminate against any person because of “physical disability, mental disability, [or] medical condition.” [Government Code §12940(a).] This discrimination ban protects both those with a disability and those who are regarded as disabled by the employer. [Government Code §12926.1(d).]

The law also requires that the employer provide reasonable accommodations so that an employee who is qualified to perform the essential functions of a job is allowed to  perform that job. If the employer denies an accommodation, it has the burden to prove that the proposed accommodation would “produce undue hardship to its operation.” [Government Code §12940(m).]

The employer also has a duty to engage in an “interactive process” with employees about potential accommodations. It is unlawful “[f]or an employer...to fail to engage in a timely, good faith, interactive process with the employee or applicant to determine effective reasonable accommodations, if any, in response to a request for reasonable accommodation by an employee or applicant with a known physical or mental disability or known medical condition.” [Government Code §12940(n).]

Other mandates under FEHA include a prohibition against testing for genetic characteristics, prohibitions against harassment and retaliation, the duty to take steps to pre­vent harassment and discrimination, and a number of restrictions on pre-employment inquiries. For example, a prospective em­ployer cannot ask questions attempting to learn the severity of a disability and cannot ask about prior worker’s compensation claims. [2 CCR §7294.0(b)(2).] An employer can ask narrowly tailored questions to determine if an employee is able to perform the essential functions of the job. [Government Code § 12940(e) (2).] Pre-offer medical examinations are prohibited, but a “job-related” post-offer examination is permissible.

One of the most important things to remember is that California law covers a very broad spectrum of physical and mental conditions. It is by no means limited to people with traditionally perceived severe disabilities. A physical or mental condition is a disability for these purposes if it “limits” a major life activity. People who are regarded as disabled are covered along with those who are disabled. In addition, by statute, a past or current diagnosis of cancer or the presence of certain “genetic characteristics” brings an individual within the protection of the law, even if there is no limitation of a major life activity. Certain conditions, however, are carved out from protections of the law, specifically sexual behavior disorders, compulsive gambling, kleptomania, pyromania, or psychoactive substance use disorders resulting form the current unlawful use of controlled substances or other drugs. [Government Code §12926(k)(6).] On a day-to-day basis, many of the claims for disability discrimination are brought by people with back problems, carpal tunnel syndrome and other familiar chronic conditions.         

Often, an inquiry into this area will involve consideration of these terms: “essential functions,” “reasonable accommodation,” and “undue hardship.” The statute defines “essential functions”:

(f) “Essential functions” means the fundamental job duties of the employment position the individual with a disability holds or desires. ‘Essential functions’ does not include the marginal functions of the position. (1) A job function may be considered essential for any of several reasons, including, but not limited to, any one or more of the following: (A) The function may be essential because the reason the position exists is to perform that function. (B) The function may be essential because of the limited number of employees available among whom the performance of that job function can be distributed. (C) The function may be highly specialized, so that the incumbent in the position is hired for his or her expertise or ability to perform the particular function. (2) Evidence of whether a particular function is essential includes, but is not limited to, the following: (A) The employer’s judgment as to which functions are essential. (B) Written job descriptions prepared before advertising or interviewing applicants for the job. (C) The amount of time spent on the job performing the function. (D) The consequences of not requiring the incumbent to perform the function. (E) The terms of a collective bargaining agreement. (F) The work experiences of past incumbents in the job. (G) The current work experience of incumbents in similar jobs. [Government Code §12926(f).]

The terms “reasonable accommodation” and “undue hardship” are fact specific indi­vidualized inquiries into the work situation in question. [Nunes v. Wal-Mart Stores, Inc. (9th Cir. 1999) 164 F.3d 1243, 1247; Bagatti v. Department of Rehabilitation (2002) 97 Cal.App.4th 344, 369.]

Examples of potential accommodations are identified at 2 CCR §7293.9:

(a) Examples of Reasonable Accommodation. Reasonable accommodation may, but does not necessarily, include, nor is it limited to, such measures as: (1) Accessibility. Making existing facilities used by employees readily accessible to and usable by individuals with disabilities; (2) Job Restructuring. Job restructuring, reassign­ment to a vacant position, part-time or modified work schedules, acquisition or modification of equipment or devices, adjustment or modification of examinations, training materials or policies, the provision of qualified readers or interpreters, and other similar actions.  

Granting an extended leave of absence is, under appropriate circumstances, a form of reasonable accommodation, provided that it seems likely that the employee will be able to return to that position reasonably soon. [Jensen v. Wells Fargo Bank (2000) 85 Cal.App.4th 245, 263.]  It is common for employers to believe (mistakenly) that medical leave rights under the California Family Rights Act (CFRA) Government Code §12945.2 create a ceiling on the amount of allowable leave. Actually, given the possibility of a longer leave as a reasonable accommodation, CFRA leave should be viewed as a floor rather than a ceiling.

Also, if the employee is no longer qualified for his or her present job, the employer must reassign or transfer the employee to any vacant positions at the same level for which the employee is qualified. [Spitzer v. The Good Guys, Inc. (2000) 80 Cal.App. 4th 1376, 1389.] The scope of this right should not be overlooked. For example, if an employee formerly doing heavy physical work suffers a major injury that limits her to sedentary work, the employee has a preferential right to assignment to any desk job she is qualified for, provided the position is vacant and does not involve a substantial pay raise. This right does not, however, necessarily supercede provisions of collective bargaining agreements or state civil service laws.

A claim of violation of FEHA is initiated by filing a complaint with the California Department of Fair Employment and Housing within one year of the act of discrimination Government Code §12960. A claim under the ADA against an employer other than certain federal agencies is initiated by filing a complaint with the Equal Employment Opportunity Commission generally within 300 days of the act of discrimination where there is a joint filing with the state agency. 42 U.S.C. §2000e-5(e). There are shorter deadlines for claims arising from federal employment in some instances. After filing an administrative complaint, the employee may elect to close the administrative complaint to pursue court action. 

An illustration may be useful. Grissom was hired by the local sheriff as a crime scene investigator. He is required to work with extremely noisy laboratory equipment, and has progressively developed a significant hearing loss. He files a worker’s compensation claim. Initially, the employer provides him with accommodations such as furnishing sign language interpreters at staff meetings and assigning other employees to conduct witness interviews. Ultimately, Grissom is determined to be permanent and stationary, and he receives a permanent disability award. A few weeks later, he is informed by the Human Resources Director that, notwithstanding the fact that the position had been temporarily modified while his workers compensation case was pending, the employer has decided that he can no longer perform the essential functions of his position. Those functions include conducting witness interviews any time day or night, sometimes on too little notice to arrange for a sign language interpreter. He is informed that he is being removed from his assignment, that he is now on leave without pay, and that the employer will search for something else he can do with less public contact.

Does his current hearing loss mean that he cannot perform the “essential job functions” with the result that the sheriff can suspend and ultimately discharge him without violating FEHA? Grissom contends otherwise, noting that he has performed a productive job for the entire time that his workers’ compensation case was pending without much apparent trouble or expense to the employer. He says it is a “reasonable accommodation” to make the temporary accommodation permanent. The employer contends that the accommodations have created additional costs and scheduling problems because other employees must cover for Grissom. No answer is furnished to this illustration, except to say that the actual details must be analyzed to assess whether continuing accommodation is really so burdensome and disruptive to the agency. Whatever the outcome on this particular issue, the employer has a duty to have an “interactive dialogue” with Grissom about providing modifications to his current job requirements, or finding him a different assignment he is qualified for if he can no longer perform the essential functions of the prior position.

California’s Fair Employment and Housing Act protects persons with disabilities, broadly defined, from discrimination in employment, and is designed to keep them as productive members of society, placing the burden on employers not to discriminate, to reasonably accommodate qualified persons who can perform the essential job functions, and to have an interactive dialogue with employees to address these issues. These are significant protections for injured workers. Moreover, as vocational rehabilitation options decrease, these protections become even more important.

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 Last updated: 12/03/2003