Ensuring that disabled employees are not discriminated against is one of the goals of both the Americans with Disabilities Act (ADA) and California’s Fair Housing and Employment Act (FEHA). This goal is accomplished through not only defining what it means to be disabled and what must be done to accommodate those with disabilities, but also through specifically outlining the actions that employers cannot take without violating the law.
Under the ADA and FEHA an employer cannot:
- “Limit, segregate or classify a job applicant or employee in a way that adversely affects the opportunities or status of that person because of a disability.” Joseph Wilson explained in a recent CER webinar.
- Have a policy with an adverse effect on people with disabilities, even if that was not the intent of the policy. One such example might be a policy that states that an employee who has an absence from work after exhausting all leave options will be terminated, without exception. This policy might seem fair on the surface – since it allows all leave to be exhausted within the law – but a further leave of absence could also be a reasonable accommodation for someone with a disability (in some cases). As such, that type of policy may have the effect of disability discrimination, though it’s certainly not the intent.
- Exclude or deny equal benefits to a qualified applicant or employee because that person is associated with a person who has a disability.
- Fail to make a reasonable accommodation for someone with a disability.
- Use qualification standards, employment tests, or other selection criteria that screens out or tends to screen out individuals with disabilities.
- Participate in contractual or other arrangements that have the effect of subjecting an individual to disability discrimination.
- Retaliate against an individual because that person opposes an employer act or a practice that is unlawful.
- Ask a job applicant whether she or he is an individual with a disability. The employer also may not ask an employee whether he or she has a disability. This is important because any time you ask someone something and later make an adverse employment decision, this will look as though it was a decision factor—even if it was not.
- Ask a job applicant about any job-related injuries or workers’ compensation history.
- Force an applicant to take a pre-offer medical examination or psychological examination. (If any medical screenings are job-related, they must be taken after an offer is made).
The above information is excerpted from the webinar “Leave, Disability & Workers’ Comp in California: Tips for Successfully Navigating the Tricky Triangle.” To register for a future webinar, visit CER webinars.
Attorney Joseph Wilson is a founding partner of Curiale Wilson LLP in San Francisco. His practice is focused on employment defense litigation, including misclassification, wage and hour claims, discrimination, wrongful termination, harassment, California Private Attorney General Act (PAGA) actions, and breach of contract cases.