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Physical Disability Harassment
Under the California Fair Employment and Housing Act (FEHA), California Government Code sections 12900 – 12996: It is an unlawful employment practice for an employer (or prospective employer) to harass employees or job applicants because of their medical condition, physical disability, or mental disability. California Government Code section 12940(j)(1).
“[H]arassment focuses on situations in which the social environment of the workplace becomes intolerable because the harassment (whether verbal, physical, or visual) communicates an offensive message to the harassed employee.” Roby v. McKesson Corp. (2009) 47 Cal.4th 686, 706.
Physical disability discrimination occurs when an employer or prospective employer as defined under such laws as FEHA or the Americans with Disabilities Act treats an employee or job applicant with a physical disability or a history of physical disability unfavorably because he or she has a physical disability. The employer is required to provide reasonable accommodation to an employee or job applicant with a physical disability, unless doing so would cause an undue hardship, such as an accommodation that creates significant difficulty or expense for the employer. It is also unlawful to harass an employee or job applicant because he or she has a physical disability, had a physical disability in the past, or because he or she is believed to have a physical disability. Additionally, employers are required to take "all reasonable steps to prevent harassment from occurring." California Government Code section 12940(j)(1).Proving a Claim for Physical Disability Harassment
To establish a claim of physical disability harassment, the plaintiff must show:
- She was an employee of the employer,
- She was subjected to unwelcome harassment by her employer based on her disability,
- A reasonable person in the plaintiff’s circumstances would have considered the work environment to be hostile, intimidating, offensive, oppressive, or abusive,
- She considered the work environment to be hostile, intimidating, offensive, oppressive, or abusive,
- That either a supervisor engaged in the harassing conduct or the employer’s supervisors should have known of the conduct and failed to take immediate and appropriate corrective action, and
- She was harmed by the harassment and the harassment was a substantial factor in causing her the harm.
Judicial Council of California Civil Jury Instructions (CACI) No. 2521A.
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 District v. Breeden (2001) 532 U.S. 268, 270.
Employers are strictly liable for harassment by the employee's direct supervisor carried out in the scope of his or her duties. However, for coworkers, the employer is only liable if the employer knew or should have known of the ongoing harassment and then failed to take immediate corrective action. California Government Code section 12940(j)(1).
Under FEHA, physical disabilities, mental disabilities, and mental conditions are defined broadly and include both actual disabilities and conditions, conditions that are potentially disabling, and situations where an employer perceives that an employee has a disability or condition. California Government Code section 12926.1(b).Physical Disability
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. California Government Code section 12926(m).
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. California Government Code section 12926(m)(1)(iii).What Qualifies as a Physical Disability?
Physical disability 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, and
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." California Government Code section 12926(m)(6). Physical disability also does not include “conditions that are mild, which do not limit a major life activity . . . such as the common cold; seasonal or common influenza; minor cuts, sprains, muscle aches, soreness, bruises, or abrasions; non-migraine headaches, and minor and non-chronic gastrointestinal disorders.” California Code of Regulations, title 2, section 11065(d)(9).An Example of Disability Harassment
In July 1994, Caldera began working as a correctional officer. Caldera was later transferred to an Administrative Segregation (Ad Seg) unit, an area where inmates with disciplinary issues or mental health needs are housed. Caldera stutters when he speaks. Both Caldera and Sergeant Grove worked in the Ad Seg unit. However, they mainly worked in different halls within the Ad Seg unit.
At some point, Sergeant Grove began to mock and mimic Caldera’s stutter. Sergeant Grove always mimicked Caldera’s stutter in situations when other employees were present. Caldera found the conduct demeaning and embarrassing. On one occasion, Sergeant Grove mimicked Caldera’s stutter over the prison’s radio system, which could be heard by about 50 employees. The psychology supervisor in the Ad Seg Unit indicated that Caldera had a disability—a “Speech impairment, stuttering, specifically, stammering.” The psychology supervisor also heard other employees mock or mimic Caldera’s stutter. The psychology supervisor said that there was "a culture of joking" at the prison about Caldera’s stutter.
Caldera eventually went to the prison’s Equal Employment Opportunity office and obtained a form to file a complaint. Caldera then filed the complaint. Soon thereafter, Sergeant Grove was reassigned to the same Ad Seg hall where Caldera was working. Sergeant Grove continued to mimic Caldera’s speech impediment.
Caldera then filed a case in court. A jury found that Caldera was subjected to unwanted harassment based on his disability; the harassment was severe and pervasive; a reasonable person in Caldera’s position would have considered the work environment to be hostile or abusive; a supervisor participated in, assisted, or encouraged the harassing conduct; the harassing conduct was a substantial factor in causing Caldera’s harm; the employer failed to take all reasonable steps to prevent the harassment; and the employer’s failure to prevent the harassment was a substantial factor in causing Caldera harm. A jury found that Caldera was entitled to $500,000 in noneconomic damages. The Court of Appeal of the State of California, Fourth District, Division 3 affirmed the jury verdict.
Caldera v. Department of Corrections & Rehabilitation (2018) 25 Cal.App.5th 31.Contact Us
If you are experiencing harassment due to a disability, or if you believe that your rights have otherwise been violated by your employer or ex-employer, call the experienced employment law attorneys at Kokozian Law Firm, APC or Contact Us via our online form.