Mental Disability 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).
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.
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, contact the prominent disability harassment attorneys at Kokozian Law Firm, APC. 323-857-5900. Ask about our free initial consultation.