Medical Condition Harassment
California Fair Employment and Housing Act (FEHA): It is an unlawful employment practice for an employer (or any other person) to harass employees or applicants because of their medical condition, physical disability, or mental disability. Cal Gov. Code §12940(j)(1).
Additionally, employers are required to take "all reasonable steps to prevent harassment from occurring." Cal. Gov. Code §12940(j)(1).
Americans with Disabilities Act (ADA): To establish a claim of disability harassment, the plaintiff must show:
- He or she [is disabled],
- He or she was subjected to unwelcome harassment,
- The harassment affected a term, condition, or privilege of employment, and
- The employer knew or should have known of the harassment and failed to take prompt, remedial action. Flowers v. Southern Regional Physician Services, Inc. 247 F3d 235-36.
Harassment is normally a separate cause of action from discrimination. However, harassment is actionable as "discrimination" if it is "so severe or pervasive as to alter the conditions of [the victim's] employment and create an abusive working environment." Clark County School Dist. v. Breeden, (2001) 532 US 268, 270.
Employers are strictly liable for harassment by the plaintiff's direct supervisor carried out in the scope of his or her duties. However, for coworkers, the employer is only liable if it knew or should have known of the ongoing harassment and then failed to take immediate corrective action. Cal Gov. Code §12940(j)(1).
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).
Medical Condition is defined as:
- Health impairments related or associated with a diagnosis, record, or history of cancer, or
- Genetic characteristics:
Scientifically or medically identifiable genes, chromosomes, or combinations or alterations of them that is known to be a cause of a disease or disorder in a person or his or her offspring, that is determined to be associated with an increased risk of developing a disease or disorder. Inherited characteristics known to be a cause of a disease or disorder in a person or his or her offspring, or that are determined to be associated with a statistically increased risk of any disease or disorder. Cal. Gov. Code § 12926.
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.Contact Us
If you are experiencing harassment due to a disability or medical condition, contact the respected disability harassment attorneys at Kokozian Law Firm, APC. 323-857-5900. Ask about our free initial consultation.