Mental Disability Discrimination
California Fair Employment and Housing Act (FEHA): It is unlawful for an employer to refuse to hire; to discharge or to terminate; to refuse to select or to bar or discharge an employee from a training program leading to employment; or to discriminate against the person in compensation or in terms, conditions, or privileges of 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).
To establish a claim, the mental disorder or condition must limit a major life activity. If a mental or psychological disorder or condition makes the achievement of the major life activity difficult, then it limits the major life activity. Id.
Mental disorders or conditions include but are not limited to
- mental retardation,
- Autism or Asperger's syndrome
- organic brain syndrome,
- Tourette syndrome
- emotional or mental illness,
- specific learning disabilities that require special education or related services, Id.
- clinical depression,
- Down syndrome
- bipolar disorder, Cal. Gov. Code § 12926.1
- post-traumatic stress disorder,
- cerebral palsy
- Alzheimer's disease
- depression and personality disorders,
- obsessive compulsive disorder.
- If an employer regards an employee or treats an employee as though they have a mental condition that makes achievement of a major life activity difficult, such is enough to constitute a mental disability. Cal. Gov. Code §12926.
- Mental disabilities do 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.
Perform the Essential Duties
To 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 disability discrimination. 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).
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 renowned disability discrimination attorneys at Kokozian Law Firm, APC. 323-857-5900. Ask about our free initial consultation.