Wrongful Termination Due To Physical Disability
California Fair Employment and Housing Act (FEHA): It is unlawful for an employer to terminate an employee from employment because of the employee’s physical disability, mental disability, or medical condition. Cal. Gov. Code § 12940(a).
Under FEHA, physical disabilities, mental disabilities, and mental conditions are defined broadly and include both actual disabilities and conditions, and situations where an employer perceives that an employee has a disability or condition. Cal. Gov. Code § 12926.1(b).
A physical disability is “[a]ny physiological disease, disorder, condition, cosmetic disfigurement, or anatomical loss that does both of the following:
- affects one or more of neurological, immunological, musculoskeletal, special sense organs, respiratory, speech organs, cardiovascular, reproductive, digestive, genitourinary, hemic and lymphatic, skin, and endocrine, and limits a major life activity.
- If it makes achievement of a major life activity difficult then it is a limit on a major life activity. “Major life activity” is broadly construed and includes physical, mental, and social activities as well as working.
Physical disability “does not include sexual behavior disorders, compulsive gambling, kleptomania, pyromania, or psychoactive substance use disorders resulting from the current unlawful use of controlled substances or other drugs.” Cal. Gov. Code § 12926. It also includes but is not limited to:
- Back conditions,
- Wrist Injuries,
- Hypertension and high blood pressure,
- Hypersensitivity to Tobacco,
- Injury to: Shoulder, Eye, Foot, Wrist, Jaw, Neck, Leg, Hip, Ankle, Hand,
- Severe migraine headaches,
- Severe pain,
- Injuries that require surgery such as head surgery, eye surgery, shoulder surgery, back surgery, neck surgery, foot surgery, hand surgery, hysterectomy,
- Cystic fibrosis,
- Sickle Cell Anemia,
- Polycystic kidney,
- Tuberculous sclerosis,
- Huntington Disease,
- Spinal muscular atrophy,
- Lung carcinoma,
- Heart Disease,
- Parkinson Disease,
- Crohn’s Disease
- Brain seizures
- Color blindness
Perform the Essential DutiesTo bring a claim an employee must be able to perform the essential duties with reasonable accommodations. Green v. State of California, (2007) 42 Cal. 4th 254, 263, citing Stats. 1992, ch. 913, § 1, p. 4282.
- Essential duties/functions of the job are defined as duties of the employment position.” They do not include the “marginal functions of the position.” Cal. Gov. Code §12926 (f). for example
- Plaintiff had a conditional offer for appointment as a correctional officer. He was unable to complete the prerequisite training because of a permanent knee injury, which also “made it impossible for him to perform the essential functions of the position for which he was conditionally hired.” Plaintiff was qualified for the position when he was given the condition offer of employment but he failed to satisfy the prerequisites for permanent appointment to that position. Thus, Plaintiff failed to establish a prima facie case for wrongful termination based on his disability. Hastings v. Department of Corrections, (2003) 110 Cal. App. 4th 963, 971.
It is also unlawful for an employer to “fail to make reasonable accommodations for the known physical or mental disability of an applicant or employee.” Cal. Gov. Code § 12940(m). (more below)
It is unlawful for an employer to “fail to make reasonable accommodation for the known physical or mental disability of an applicant or employee.” Cal. Gov. Code § 12940(m).
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 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.” Prilliman v. United Air Lines, Inc., (1997) 53 Cal. App. 4th 935, 950-951.
Reasonable Accommodations include but are not limited to:
- “making existing facilities used by employee readily accessible to, and usable by, individuals with disabilities.”
- “job restructuring, part-time or modified work schedules, reassignment to a vacant position, acquisition or modification of equipment or devices, adjustment or modifications of examinations, training materials or policies, the provision of qualified readers or interpreters, and other similar accommodations for individuals with disabilities.” Cal Gov. Code. § 12926(n).
- giving an disabled employee time to recuperate or heal by leaving their job open for a period of time is a reasonable accommodation, “where it appears likely that the employee will be able to return to an existing position at some time in the foreseeable future.” Jensen v. Wells Fargo Bank, (2000) 85 Cal. 4th 245, 263.
- Offering the Disabled employee a position that is vacant. Hanson v. Lucky Stores, (1999) 74 Cal. App. 4th 215, 227.
If you are experiencing discrimination due to a disability or medical condition, contact the highly experienced attorneys concentrating in wrongful termination due to disability, at Kokozian Law Firm, APC. 323-857-5900. Ask about our free initial consultation.