When it comes to disability discrimination, there are a few different sources of rights an employee may use to defend himself or herself from mistreatment. Depending on what type of employee and employer the scenario involves will determine what body of law to apply. The Americans with Disabilities Act (ADA), the Rehabilitation Act, and the California Fair Employment and Housing Act (FEHA) are the sources of rights for employees with a disability. Although all three are very similar, FEHA, unlike the other two Acts, is not a federal Act. This means it applies at a state level and is less likely to be interpreted via federal decisions. The good thing about FEHA is that provides more protection for employees.
2. What legislation provides rights to me specifically?
The answer is not straightforward and may depend on the facts of the particular case, but the Rehabilitation Act will apply to you if work for a federal agency, a federal contractor, or you receive federal financial support. You may have rights under the ADA if you are one of more than 15 employees at your job. However, for those employees at a smaller company, FEHA will protect an employee who is one of five or more employees.
3. Are employers required to take into account my disability when hiring?
Affirmative action is a particular type of hiring policy enforced by employers to afford equal opportunities to legally recognized minority groups. Per the Rehabilitation Act, federal contractors are required to incorporate affirmative action in their hiring practices. This means an employer must consider an employee’s disability when choosing a candidate to fill a position. However, employers that fall under the ADA and FEHA are not required to apply affirmative action when hiring. For example, an employer would not be obligated to take into account the fact that an employee belonged to a minority group and hire them as a means of representing an underrepresented group.
4. Do I have a legally recognized disability?
Not all conditions, illnesses, or impairments are identified as a “disability” under the law. It can be frustrating for some employees of interviewees who are entitled to benefits from the government for their disability because this does not automatically deem he or she as an employee with a disability under the ADA. An employee or interviewee would need to discuss with an employment lawyer as to whether he or she has a legally recognized disability by a particular Act.
5. Are my eyeglasses or contact lenses considered a disability?
Usually, the law determines whether an employee’s disability is legally recognized which is measured by whether the disability impairs an individual’s ability to carry out a major life activity. But what about if an employee or candidate has poor eyesight, is that considered as a disability? In most cases, an employee or candidate who has poor vision will only be considered as having a disability if the impairment cannot be corrected with prescription eyeglasses or contact lenses.
6. What if my disability requires an interpreter or reader?
For some individuals who have been professionally diagnosed to have a disability may require a reader or an interpreter. This may arise if an employee or candidate wears a hearing aid or has a processing deficit. For instance, an employee may be able to carry out a job but on occasion may need someone to read him or her certain paperwork during an annual training seminar or for a person who is undergoing a test in an interview for a position. Depending on what legislation is relevant to the particular employee or candidate will determine whether the employer is obligated to provide this kind of accommodation. If an employer is required to provide this type of accommodation to an employee and in which cases refuses, that employer could be liable for disability discrimination.
7. What if my disability is irregular?
For an employee or interviewee, it can be difficult to explain to an employer that their disability impacts them sporadically. does an employee or interviewee tell their employer that their disability is unpredictable? In other words, the individual can have periods of being in a well state followed by random spells of their disability impacting their health. Some examples of this may be HIV, epilepsy, diabetes, or remission for cancer. Flare-ups or a spike of impairment does not mean an employee does not have a disability and should not be entitled to accommodation in the workplace. Disabilities are not always predictable and the legislation recognizes individuals who experience sporadic impairments.
In certain situations, depending on the specific disability and how the disability affects the employee or interviewee’s ability to perform key life activities, may be considered a disability under California legislation.
8. The name disability is not listed under the legislation
Just because the medical term used to diagnose your disability is not specified under the legislation or perhaps your employer has never heard of it, does not mean you are not entitled to protection under the legislation. In order ensure that most disabilities are recognized, the legislation does not look to the name of a disability or condition but rather to how it impacts an employee or interviewee’s ability to perform key life activities. Examples of key life activities include bathing, walling, seeing, hearing, speaking, breathing, etc.
9. How do I know if I was discriminated against based on my disability?
Many laws in California protect employees with a disability as well as individuals who are participating in job interviews. Although the laws are there to provide protection, the laws are complicated so employees may not know their rights and employers may not be abiding by their obligations. The best way to know if you are being discriminated against by an employer to meet with an employment lawyer who specializes in representing employees against their employers.
A good place to start in your search for a discrimination lawyer would be to search for a firm who offers free consultations.