Employment Discrimination Based on Disability

EMPLOYMENT DISCRIMINATION

AND HARASSMENT BASED ON A

PERSON’S DISABILITY OR PERCEIVED

DISABILITY ARE PROHIBITED

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EMPLOYMENT

DISCRIMINATION

BASED ON DISABILITY

The Fair Employment and Housing Act (FEHA),

enforced by the California Civil Rights Department

(CRD), prohibits employment discrimination

and harassment based on a person’s disability

or perceived disability. In addition, the FEHA

prohibits retaliation for exercising a FEHA right,

such as filing a complaint about discrimination.

The law also requires employers to reasonably

accommodate individuals with mental or physical

disabilities unless the employer can show that to

do so would cause an undue hardship.

The law covers mental or physical disabilities,

including HIV/AIDS, regardless of whether

the conditions are presently disabling. It also

covers medical conditions, which are defined

as either cancer or genetic characteristics.

Disability does not include sexual behavior

disorders, compulsive gambling, kleptomania,

pyromania, or psychoactive substance abuse

disorders resulting from the current illegal

use of drugs.

CALIFORNIA LAW PROHIBITS

DISCRIMINATION BASED UPON AN

INDIVIDUAL’S ACTUAL OR PERCEIVED

DISABILITY

POTENTIAL REMEDIES

CRD serves as an objective fact-ﬁnder and

attempts to help the parties voluntarily

resolve disputes. If CRD ﬁnds sufﬁcient

evidence of discrimination and settlement

efforts fail, CRD may ﬁle a lawsuit in civil court

on behalf of the complaining party, after a

mandatory mediation.

If the court ﬁnds that discrimination has

occurred, it can order remedies such as:

1. Damages for emotional distress from each

employer or person in violation of the law

2. Hiring or reinstatement

3. Back pay or promotion

4. Changes in the policies or practices of the

employer

5. Punitive damages

6. Reasonable attorney’s fees and costs

Employees can also pursue the matter

through a private lawsuit in civil court after

a complaint has been ﬁled with CRD and a

Right-to-Sue Notice has been issued.

FFILING A ILING A COMPLAINTCOMPLAINT

If you believe you are a victim of discrimination

or harassment, you may ﬁle a complaint

by contacting CRD as described below.

Complaints must be ﬁled within three years of

the last act of discrimination. CRD processes

complaints ﬁled by persons with terminal

illnesses on a priority basis.

To schedule an appointment, contact the

Communication Center below.

Employees can also pursue the matter

through a private lawsuit in civil court after

a complaint has been ﬁled with CRD and a

Right-to-Sue Notice has been issued.

If you have a disability that requires a

reasonable accommodation, CRD can

assist you by scribing your intake by phone

or, for individuals who are Deaf or Hard of

Hearing or have speech disabilities, through

the California Relay Service (711), or you can

calcivilrights.ca.gov/complaintprocess

Toll Free: (800) 884-1684

TTY: (800) 700-2320

[email protected]v

For additional translations of this guidance:

www.calcivilrights.ca.gov/posters/employment

CRD-E01B-ENG / December 2022

FEHA VS. THE FEDERAL AMERICANS

WITH DISABILITIES ACT:

The FEHA provides broader protection for persons

with disabilities than federal law. California

employers with five or more employees must follow

the FEHA. California also has broader definitions

of mental disability, physical disability, and medical

condition than does federal law.

Under California law, a disability must only “limit”

a major life activity. The disability does not have to

involve a “substantial limitation,” as under federal

law, to be considered a disability. Whether a

condition or disability “limits” a major life activity is

determined regardless of any mitigating measure,

such as medication or prosthesis, unless the

mitigating measure itself limits a major life activity.

REASONABLE ACCOMMODATION

An employer is required to interact with an

employee to explore all possible means of

reasonably accommodating a person prior to

rejecting the person for a job or making any

employment-related decision. The need for

accommodation may arise from a mitigating

measure, such as medication taken for the

primary disability.

An accommodation is reasonable if it does not

impose an undue hardship on the employer’s

business. Reasonable accommodation can

include, but is not limited to, changing job duties

or work hours, providing leave, relocating the

work area, and/or providing mechanical or

electrical aids. An employer may obtain help from

government agencies and outside experts to

determine whether accommodation is possible.

INDEPENDENT MEDICAL OPINION

An employer must allow an applicant the

opportunity to submit an independent medical

opinion if there is a dispute as to whether the

person can perform the essential functions

of a position with or without reasonable

accommodation. Failure to allow the submission

of an independent medical opinion may be a

separate violation of the law.

DISCRIMINATION

The following two reasons commonly raised by

employers are not legally acceptable excuses for

discriminating against persons with disabilities:

• Possibility of future harm to the person or to

others

• Employing individuals with disabilities will

cause an employer’s insurance rates to rise

Any employment-related or personnel decision

based on either of the following reasons is not

discriminatory:

• The person is unable to perform the essential

functions of the job and no reasonable

accommodation exists that would enable the

person to perform the “essential functions” of

the job

• The person would create an imminent

and substantial danger to self or others

by performing the job and no reasonable

accommodation exists that would remove or

reduce the danger

EMPLOYMENT

DISCRIMINATION

BASED ON DISABILITY

EMPLOYMENT INQUIRIES

The FEHA prohibits employers from either

verbally or in writing:

1. Requiring any medical or psychological

examination or related inquiry of any

applicant or employee prior to making an

offer of employment

2. Inquiring directly or indirectly as to whether

an applicant or employee has a mental or

physical disability or medical condition

3. Inquiring about the nature and severity of

a mental or physical disability or medical

condition

However, an employer may inquire into the ability

of an applicant to perform job-related functions

and may respond to an applicant’s request either

with or without a reasonable accommodation.

Once an employment offer has been made to

an applicant, but before the start of duties, an

employer may require a medical or psychological

examination. However, the examination or inquiry

must be job related and consistent with business

necessity and all entering employees in the same

job classiﬁcation must be subject to the same

examination or inquiry.

An employer may also conduct voluntary medical

examinations, including medical histories, as part

of an employee health program. This information

must be retained separate and apart from

employment and personnel records. Employers

may not penalize employees for declining to

participate in voluntary medical examinations.