The Lexicon of Disability Discrimination: 5 Terms Every Employer Needs to Know

California’s equal employment agency, the Department of Fair Employment and Housing (DFEH), recently released statistics on discrimination charges filed by employees in 2015. One of the most common is disability discrimination; in 2015, 8,507 employees in California filed disability discrimination charges with the DFEH. The federal counterpart to the DFEH, the Equal Employment Opportunity Department (EEOC), also reported disability discrimination as one of the most common types of charges filed by employees (26,968 charges filed nationally in 2015).

Employers, your knowledge and understanding of the following five fundamental terms related to disability discrimination under California law can make the difference between avoiding and facing a lawsuit.

1. Disability

Under California law, the definition of “disability” is intended to be construed broadly in favor of expansive coverage. Conditions, disorders and impairments that limit (a.k.a. make difficult) the achievement of “major life activities” including physical, mental, and social activities, especially those life activities that affect employability or advancement, can be considered disabilities under the law.

California law enumerates the following as types of disabilities: 1) mental disabilities, 2) physical disabilities, 3) disabilities requiring past special education or related services, 4) a record or history of disabilities, 5) perceived disabilities, 6) perceived potential disability and 7) medical conditions, specifically cancer-related or a genetic characteristic.

Practical Tip for Employers: Don’t ask too much about an employee’s disability. When the disability is not obvious, the employer may request the employee provide medical documentation. However, that documentation only needs to contain confirmation by a medical professional of the existence of the disability, a description of the physical or mental limitations that affect a major life activity, and the need for reasonable accommodation. Employers may not ask the employee or medical professional to disclose the nature of the disability nor the underlying medical cause of the disability.

2. Interactive Process

The interactive process is the timely, good faith communication between the employer and the applicant or employee with a disability to explore reasonable accommodations so that he/she can apply for the job or perform the essential functions of the job.

The employer’s obligation to engage the employee in the interactive process is triggered by the following three situations: 1) the employee, with a known disability, requests reasonable accommodation, 2) the employer becomes aware of the disability and accommodation need from a third party or by observation or, 3) the employer becomes aware of the disability and accommodation need because the employee has exhausted medical leave under other laws such as the Workers' Compensation Act, California Family Rights Act/Family Medical Leave Act or the Pregnancy Disability Leave.

Practical Tip for Employers: It is not a one-way or a one-time conversation; it is an ongoing dialogue between the employee and employer about possible options and solutions for the affected individual with a disability. Employers should document in writing each interactive process-related conversation.

3. Reasonable Accommodations

The purpose of the interactive process is to identify reasonable accommodations, which are defined as “modifications or adjustments” that allow applicants to apply for a job and for employees to perform the essential functions of the job and/or enjoy equivalent benefits and privileges as employees without disabilities.

Examples of acceptable reasonable accommodations articulated in California’s disability regulations are broad and plentiful, and include 1) making facilities accessible, 2) use of assistive animals, 3) transferring an employee to a more accessible worksite, 4) providing assistive aids and services such as qualified readers or interpreters, 5) job restructuring, 6) providing a part-time or modified work schedule, 7) permitting an alteration of when and/or how an essential function is performed, 8) modifying an employer policy, 9) modifying supervisory methods, 10) providing additional training, 11) permitting an employee to work from home, 12) providing leave of absences, and 13) reassignment to a vacant position.

Practical Tip for Employers: The employer bears an affirmative duty to provide reasonable accommodations; they can consist of numerous “modifications” and “adjustments” at any one time, evolve based on the disabled employees’ needs, and continue for an extended time period. Think creatively and openly in recommending accommodations and assessing employees’ suggestions; it very well may be the “first time” it has been done at your workplace.

4. Essential Functions of the Job

While the law requires employers to implement reasonable accommodations for disabled applicants and employees, it is makes clear the individual must still be able to perform the essential functions of the job. Job functions are considered essential if: 1) the position exists to perform that function, 2) there are a limited number of employees available to whom the job function can be distributed, or 3) the function is highly specialized.

Practical Tip for Employers: One form of evidence that a job function is essential is if its articulated in a written job description; thus it is important for employers to create job descriptions that are accurate and current.

5. Undue Hardship Defense

Employers are relieved of its duty to provide reasonable accommodations if it can show that, after engaging in the interactive process, the reasonable accommodations identified would impose an undue hardship to the business. An accommodation is generally considered an undue hardship if it causes a significant difficulty or expense which is determined by the following factors: 1) the nature and net cost of the accommodation, 2) the overall financial resources of the facilities, the number of persons employed at the facility, the effect on expenses and resources, or the impact on the operation of the facility and its ability to conduct business, 3) the overall financial resources of the employer, its employee size, and the number, type, and location of its facilities, 4) the type of operations, including the composition, structure, and functions of the workforce, and 5) the geographic separateness, administrative, or fiscal relationship of the facilities.

Practical Tip for Employer: Do not interpret “undue hardship” too broadly; cost alone is rarely a justification to deny a reasonable accommodation. Make sure to conduct research and document in writing the reasons why an accommodation is being denied based on undue hardship.

Contact Shivani Sutaria Law Offices at 408/406-8208 or shivani@sutaria-law.com for your employment law needs.