8 Things You Need To Know About Disability Discrimination
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At the Federal and State level, discrimination against employees with
disabilities is prohibited by law. Under the Federal law, the Americans with Disability Act
(ADA) prohibits discriminatory actions taken by employers against their
employees. The same applies at the State level in California and is
regulated by the Fair Employment and Housing Act
(FEHA). Amongst other recognized protected classes and or
characteristics, employees with physical or mental disabilities have
rights that protect them from being discriminated against based on their
disability. Employees with disabilities in California have many rights
under FEHA, however it is a matter of knowing your rights as a disabled
employee in order to know you have a claim against your employer or
organization who has violated those rights. Call a Disability Discrimination Lawyer to discuss this further.
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An employee may have a disability discrimination case if they can show
that they had a recognized disability, they possessed the skills and
qualifications for the position they occupied at the time or applied
for, they were subjected to adverse treatment in the workplace, and the
reason for this treatment was based on their recognized disability. A Disability Discrimination Lawyer in your area is the professional to contact in this kind of situation,
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Recognized mental disabilities under FEHA may include mental or
psychological disorders such as learning disabilities, associated
deficits and disorders, intellectual disabilities, organic brain
syndrome, and/or emotional or mental illness. A recognized physical
disability under FEHA may include any physical impairment by a
physiological disease, disorder, condition, cosmetic disfigurement, or
any loss of control of the body. Physical impairments must affect the
employee's body system as well as limit major life activity. Consider
speaking to a Disability Discrimination Lawyer for more assistance.
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The burden of proof is on the plaintiff, in this case, the employee, to
prove that he or she has been discriminated against by the employer. In
order to prove an employee has been discriminated against, the employee
must prove that there was a causal connection between their disability
and their termination, constructive termination or resignation from
their position. This causal connection would demonstrate that the
employee was terminated based on their disability. For example, an
employee with a recognized learning disability is asked to sit for an
exam for training purposes. This employee's particular disability
required that he have a person read the exam directions and questions
aloud to him. When the employee sent a formal request for this
accommodation, the employer said they had to let him go because "this
company didn't need the dead weight of someone who couldn't handle
taking an exam without having someone read the instructions for them".
Here, the employer's actions and words may be characterized as
discriminatory because the employee's request for accommodation
triggered the employer's decision to terminate his employment (Hoffman v. Caterpillar, Inc.,
368 F. 3d 709, 2004 U.S. App.) Therefore, there is a direct causal link
between the employee's disability and the decision to terminate. In
this scenario the employee would be able to draw this link and have a
potential action against the employer for disability discrimination
under FEHA. For a clearer understanding of this contact a Disability
Discrimination Lawyer.
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If the case was to go to trial, the employee in this scenario would
have to show that their disability was the substantial and driving force
behind the termination.(Horsford v. Board of Trustees of Calif. State Univ. (2005))
Referring back to the employee with the learning disability, let's say
prior to the employee's request for accommodation he had been caught
stealing products from his job-site. Based on those facts the employer
may argue that the reason for firing the employee was based on the
theft. Therefore, the employee may not be able to prove that his
disability was the substantial cause of his termination. Asking a
Disability Discrimination Lawyer is the best way to pursue a disability
discrimination case.
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As mentioned previously, an employer's choice of words can be
calculated to being discriminatory and contribute to the evidence that
the employee was wrongfully terminated. An employer may choose to
verbalize, or write words or make remarks that may be discriminatory.
This could occur anywhere from being said in an email or in passing in
the break room. In some circumstances the remark could be characterized
as discriminatory even if the remark was not directed at the employee
with a disability (Metoyer v. Chassman (9th
2007)) For example, referring the employee with the learning
disability, prior to his termination his employer may have made jokes at
the company Christmas party to other employees about "how lazy people
with disabilities are". Here, even though this comment was made to
another employee, the employee with the disability may present this as
evidence that their disability was the ultimate cause of his
termination. However, keep in mind that it bolsters an employee's claim
if the remarks made by the employer were related to the ultimate
decision to terminate the employee otherwise they may be considered
"stray remarks" (Waterhouse v. Hopkins
(1989)). In California, "stray remarks", which may be discriminatory
remarks made outside of the decision-process to terminate an employee,
are still taken into account and considered part of all evidence as a
whole (Reid v. Google, Inc. (2010)). With the assistance of a Disability Discrimination Lawyer, an employee can make claim against their former employer.
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An employee may strengthen their claim if they can prove that their
employer did not implement the reasonable accommodation. Depending on
the circumstances and the particular disability, in general, an employer
would need to reasonably accommodate an employee through modifications
and adjustments, facilitate processes that would enable the employee to
carry out essential job functions, and provide paid or unpaid leave to
the employee while they receive treatment for their disability. Some
ways that an employer could accommodate the disabled employee would be
by allowing the employee to switch to a part-time position, allow
flexibility in scheduling, adjust facilities within the workplace to be
accessible to the employee based on the employee's disability needs,
provide extra training to ensure the employee receives an equal
opportunity in comparison to all other employees, allow the employee to
have support or guide dog accompany them at work,
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Above all, it is imperative that the employer maintains open
communication with the employee in relation to any changes in their
needs as a disabled employee, also known as an "interactive process". It
is the organization or employer's responsibility to ensure that all
supervisors who oversee the disabled employee are aware of any
accommodations that need to be provided to the employee. For further
guidance on the matter, call a Disability Discrimination Lawyer.
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