Disability Under California Law Is Much More Expansive Than Under The Federal Americans With Disabilities Act
In 2001, the legislature provided strong language indicating that FEHA is much more expansive than the Federal ADA. The legislature finds and declares as follows:
(a) The law of this state in the area of disabilities provides protections independent from those in the federal Americans with Disabilities Act of 1990...this state's law provides additional protections.
California Government Code Section 12926.1(c),(d)(2) only requires that the disability limit activity. It does not require a substantial limitation, Colmenares v. Braemar Country Club, D.A.R. 1919, 1921 (2-21-03). The Code specifically says this distinction is intended to result in broader coverage under this state law than under the federal ADA.
EEOC regulations are not to be used when interpreting the California Fair Employment and Housing Act insofar as it relates to disability law. EEOC regulations are useful when the state statute is molded on the federal law the regulation is based upon, Cassista v. Comm. foods, Inc., 5 Cal.4th 1050, 1063, 22 Cal.Rptr.2d 287, 296 (2002). However, where the applicable FEHA statute is not sufficiently molded on the ADA, EEOC Regulations cannot control the meaning given FEHA, Bagatti v. Dept. of Rehabilitation, 97 Cal.4th 344, 358, 118 Cal.Rptr.2d 443, 452 (2002) a disability case under FEHA.
In order to establish a prima facie case of disability discrimination under FEHA the employee must show : 1) that she suffers from a disability; 2) the employee is a qualified individual to perform their job; 3) they were subjected to an adverse employment action because of the disability, Deschene v. Pinole Steel Co., 76 Cal.4th 33, 44, 90 Cal.Rptr.2d 15 (1999); Brundage v. Hahn, 57 Cal.4th 228, 236, 66 Cal.Rptr.2d 830 (1997). The employer must offer a legitimate nondiscriminatory reason for the adverse employment action, and the plaintiff then bears the burden of proving that the employer's proffered reason was pretextual, Brundage, 57 Cal.4th 236.
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Disability Discrimination Can Mean Discriminating Against An Employee For Having A Record Of An Impairment
Disability can also mean having a record of a disorder, condition, anatomical loss, or health impairment, California Government Code Section 12926(k)(3). A record of disability can mean that an employee has had a medical condition for an unusually long time. It can also mean that the employee has a record of treating for disability.
Employers Are Liable For Discriminating Against That Which They Perceive To Be A Disability
Under California law, employers are liable for perceived disabilities, California Government Code Section 12940. Discrimination is often based upon stereotypes. Perceived disability discrimination exists when somebody has a medical condition or impairment which allows them to work with accommodation, but the employee insists they cannot. Perceived disability discrimination could also exist if an employee did not have anything wrong with them, but the employer asserted that they did.
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Some people refer to the Americans With Disabilities Act as "The Disabilities Act." Please contact us at 1-877-525-0700 to find out why you are better off suing under California law than the Disabilities Act. If you need a lawyer for disability discrimination we would like to help you. The wrong advice about disability discrimination can lead to a choice of the wrong law.
Disability discrimination in the workplace is on the rise. Many American workers have recognized disabilities under the Federal Disabilities Act and the Fair Employment and Housing Act. The aging nature of our population has also created a rise in disability discrimination in the workplace. Many older workers develop disabilities under the various disability act.
Karl Gerber takes a personal affront to disability discrimination. His wife sponsors Team Stephanie at the National Multiple Sclerosis walk Mr. Gerber has walked since 2000. Mr. Gerber and his wife are also sponsors of the Southern California Families With Marfans Group that meets at his house on a quarterly basis. Mr. Gerber is also involved in the Ovarian and Breast Cancer walks in Los Angeles. Persons suffering from cancer and multiple sclerosis have a special place in Mr. Gerber's heart.
Disability Discrimination has been a growing concern. If an employer is discriminating due to physical or health impairment, they are violating a code. Serving All Of Kern County Including: Arvin, Bakersfield, Lebec, Mojave, Ridgecrest, Taft, And Wasco. Call 1-877-525-0700 to speak to a Bakersfield disability discrimination lawyer who cares.