EMPLOYMENT LAW BULLETIN

Vol. 02, No. 11

Courtesy of Eskridge Law, Attorneys at Law

What is a Disability under California Laws?

The California Fair Employment and Housing Act (FEHA) protects employees who have physical and/or mental disabilities from harassment or discrimination. California Government Code § 12940 states:

It shall be an unlawful employment practice, unless based upon a bona fide occupational qualification...(a) For an employer, because of the ...physical disability [or] mental disability ...of any person, to...discriminate against the person in compensation or in terms, conditions, or privileges of employment.

Physical Disability includes physiological disease, disorder, condition, cosmetic disfigurement or anatomical loss that affects a body system and limits a major life activity. Government Code § 12926(k).

Mental Disability is defined as having a mental or psychological disorder or condition that limits a major life activity. Government Code § 12926 (i).

The definitions of physical and mental disabilities specifically include chronic or episodic conditions such as hepatitis, diabetes and clinical depression. Government Code § 12926.1(c)

The protection for disabled workers in California greatly exceeds protections currently afforded by the federal Americans with Disabilities Act of 1990 (ADA). Under California law, the definitions of "mental disability" and "physical disability" require merely that the disability "limit" a major life activity - not "substantially limit," as required by the ADA. A "major life activity" is to be broadly construed to include physical, mental, and social activities and working. Government Code § 12926(k)(B). Additionally, under California law "whether a condition limits a major life activity shall be determined without respect to any mitigating measures, unless the mitigating measure itself limits a major life activity." Government Code § 12926.1. As a result, more mental and physical impairments will qualify as disabilities under California law than under federal law. An applicant or employee may only be denied work or demoted because of a disability if the applicant is unable to perform the essential functions of the job, even with reasonable accommodations.

Steps to Prevent Disability Discrimination

1. Conduct an audit of policies and job descriptions. Identify essential functions of each job and be sure to include each such function in the description. Do not distinguish mental and physical requirements from essential functions.
2. Conduct training. It is imperative to train members of management to recognize requests for accommodation and to seek assistance from human resources and/or counsel.
3. Consult an experienced employment attorney.

Next month's issue will cover providing reasonable accommodations for employees with disabilities!

Eskridge Law, Attorneys at Law, may be contacted by phone (310/792-7021), by fax (310/792-7022) or by e-mail(geskridge@ealaw.net). Please visit our web site at www.ealaw.net or www.employmentattorneys.net.

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