Orange County Employment Lawyer Blog

Any California employee who feels they were discriminated against at work due to a disability falls under the auspice of the EEOC (Equal Employment Opportunity Commission). As discussed in my prior blog post, disabilities used to be defined as "conditions that affect one or more of the body systems, such as the musculoskeletal and neurological systems, and that limit an individual's ability to participate in a major life activity." On September 23, 2009, the new Amendments to the ADA (Americans with Disabilities Act) were published, which included some of the following items:

• The definition of "disability" was broadened, making it easier for an employee to establish that she has a disability. Specifically, where it once said "substantially limiting a major life activity", the new amendment does not require the disability to be significant or severely restricting a major life activity.
• The definition of "major life activities" was significantly broadened.
• If a disability is in remission but would substantially limit a major activity when "active" it still would be considered a disability.

These new amendments emphasize that a disability should be construed broadly in favor of the employee, which will make it much easier for employees to establish a disability under the ADA.

RELATED RESOURCES

EEOC Notice Concerning the ADA Amendments Act of 2008

A recent Orange County case on appeal in the Fourth District (Scotch v. Art Institute of California-Orange County, Inc.) affirmed summary judgment (a motion to have the entire case dismissed before trial) for the Defendant was proper because the Plaintiff did not identify a reasonable accommodation that was available at the time the interactive process (meeting between the employer and the employee) occurred.

FEHA protects individuals with "disabilities." "Physical disability" has been defined to include cosmetic disfigurement and physiological and anatomical conditions that affect one or more of the body systems, such as the musculoskeletal and neurological systems, and that limit an individual's ability to participate in a major life activity. Employers may not bar or discharge from employment an employee based upon his/her's disability, or otherwise discriminate against the person in compensation or in terms, conditions or privileges of employment.

REASONABLE ACCOMMODATION / INTERACTIVE PROCESS

The law imposes an affirmative obligation on both parties to engage in the "interactive process" to determine whether reasonable accommodations are possible. A lot of litigation concerns whether an employer engaged in good faith discussions with the employee concerning the availability of reasonable accommodations, including alternative positions. Failure to engage in the good faith "interactive process" by either an employer or employee can be determinative on the validity of certain disability discrimination claims. The accommodation process is a dynamic one with many considerations to be evaluated. The FEHA requires employers to make reasonable accommodation for the known disabilities (mental or physical) of employees to enable them to perform a position's essential functions, unless doing so would produce undue hardship on the employer's operations or would create a danger or threat of safety to the disabled employee or others. Some possible reasonable accommodations that may be considered include, but are not limited to:

• Making existing facilities used by employees readily accessible to, and usable by, individuals with disabilities;
• Job restructuring, part-time or modified work schedules, reassignment to a vacant position, acquisition or modification of equipment or devices, adjustment or modifications of examinations, training materials or policies, the provision of qualified readers or interpreters, and other similar accommodations for individuals with disabilities; or
• Providing a finite leave of absence for a disabled employee to recuperate or care for his or her disability.

However, as Scotch v. Art Institute of California-Orange County, Inc., demonstrates, claims by an employee against an employer for failing to engage in the interactive process must identify a reasonable accommodation that was available at the time the interactive process should have occurred. The court recognized that during the interactive process itself, an employee may not have the same access to information about possible accommodations as the employer. However, the court states that through litigation, particularly discovery, the employee must be able to identify a reasonable accommodation that would have been available during the interactive process.

RELATED RESOURCES

California Employment Lawyers Assocation (CELA)
Department of Fair Employment and Housing (DFEH)