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Contra Costa Lawyer, December, 2003

In the opening section of the Americans with Disabilities Act of 1990 (“ADA”), Congress recognized that some “43,000,000 Americans have one or more physical or mental disabilities.”This group is protected from employment discrimination both by laws in California and many other states, as well as the federal ADA. The recent trend in California courts has been to afford a broad interpretation in favor of an employee’s rights under California law, the Fair Employment and Housing Act (FEHA), Government Code Section 12926 et al. Along the same lines, the California legislature in 2000 enacted A.B. 2222, (the “Prudence Kay Poppink Act”), to reinforce a broad interpretation of FEHA in the area of rights of disabled employees. These laws apply to all those employed in the law.

FEHA covers employers regularly employing five or more employees, but not including religious associations or religious non-profit corporations. FEHA makes it an “unlawful employment practice” to discriminate against any person because of “physical disability, mental disability, [or] medical condition.” [Government Code §12940(a).] This discrimination ban protects both those with a disability and also those who are regarded as disabled by the employer. [Government Code §12926.1(d).]

The law also requires that the employer provide reasonable accommodations that will allow an employee who is qualified to perform the essential functions of a job to perform the job. In this regard, the employer has an affirmative defense by proving that the proposed accommodation would “produce undue hardship to its operation.” [Government Code §12940(m).]

The employer also has the duty to engage in the interactive process with employees about accommodations. It is unlawful “[f]or an employer…to fail to engage in a timely, good faith, interactive process with the employee or applicant to determine effective reasonable accommodations, if any, in response to a request for reasonable accommodation by an employee or applicant with a known physical or mental disability or known medical condition.” [Government Code §12940(n).]

Other mandates under FEHA include the duty not to test for genetic characteristics, prohibitions against harassment and retaliation, the duty to take steps to pre vent harassment or discrimination and a number of restrictions on pre-employment inquiries. For example, a prospective em ployer cannot ask questions attempting to learn the severity of a disability and cannot ask about prior worker’s compensation claims. [2 CCR §7294.0(b)(2).] An employer can ask narrowly tailored questions to determine if an employee can perform the essential functions of the job. [Government Code § 12940(e) (2).] Pre-offer medical examinations are prohibited, but a “job-related” post-offer examination is permissible.

One of the most important things to remember is that California law covers a very broad spectrum of physical and mental conditions. It is by no means limited to people with traditionally perceived severe disabilities. A physical or mental condition is a disability for these purposes if it “limits” a major life activity. People who are regarded as disabled are covered along with those who are disabled. In addition, by statute, a past or present diagnosis of cancer or the presence of certain “genetic characteristics” brings an individual within the protection of the law, even if there is no limitation of a major life activity. Certain conditions, however, are carved out from protections of the law, specifically sexual behavior disorders, compulsive gambling, kleptomania, pyromania, or psychoactive substance use disorders resulting form the current unlawful use of controlled substances or other drugs. [Government Code §12926(k)(6).] On a day-to-day basis, many of the claims for disability discrimination are brought by people with back problems, carpal tunnel syndrome and other familiar chronic conditions.

Often, the focus in an inquiry into this area will involve a consideration of some combination of these terms: “essential functions,” “reasonable accommodation,” and “undue hardship.” The statute defines essential functions as follows: “(f) ‘Essential functions’ means the fundamental job duties of the employment position the individual with a disability holds or desires. ‘Essential functions’ does not include the marginal functions of the position. (1) A job function may be considered essential for any of several reasons, including, but not limited to, any one or more of the following: (A) The function may be essential because the reason the position exists is to perform that function. (B) The function may be essential because of the limited number of employees available among whom the performance of that job function can be distributed. (C) The function may be highly specialized, so that the incumbent in the position is hired for his or her expertise or ability to perform the particular function. (2) Evidence of whether a particular function is essential includes, but is not limited to, the following: (A) The employer’s judgment as to which functions are essential. (B) Written job descriptions prepared before advertising or interviewing applicants for the job. (C) The amount of time spent on the job performing the function. (D) The consequences of not requiring the incumbent to perform the function. (E) The terms of a collective bargaining agreement. (F) The work experiences of past incumbents in the job. (G) The current work experience of incumbents in similar jobs.” [Government Code §12926(f).]

The terms “reasonable accommodation” and “undue hardship” are fact specific indi vidualized inquiries into the work situation in question. [Nunes v. Wal-Mart Stores, Inc. (9th Cir. 1999) 164 F.3d 1243, 1247; Bagatti v. Department of Rehabilitation (2002) 97 Cal.App.4th 344, 369.]

Examples of potential accommodations are identified at 2 CCR §7293.9: “(a) Examples of Reasonable Accommodation. Reasonable accommodation may, but does not necessarily, include, nor is it limited to, such measures as: (1) Accessibility. Making existing facilities used by employees readily accessible to and usable by individuals with disabilities; (2) Job Restructuring. Job restructuring, reassign ment to a vacant position, part-time or modified work schedules, acquisition or modification of equipment or devices, adjustment or modification of examinations, training materials or policies, the provision of qualified readers or interpreters, and other similar actions.”

Granting an extended leave of absence is, under appropriate circumstances, a form of reasonable accommodation, provided that it seems likely that the employee will be able to return to that position not too far off in the future. [Jensen v. Wells Fargo Bank (2000) 85 Cal.App.4th 245, 263.] Also, if the employee is no longer qualified for his or her present job, the employer must reassign or transfer the employee to any vacant positions for which the employee is qualified and that are at the same level. [Spitzer v. The Good Guys, Inc. (2000) 80 Cal.App. 4th 1376, 1389.]

With these general definitions, an illustration may be of some use. Jack McCoy was hired by the local district attorney many years ago and was required to show proof of a valid driver’s license. He did so. He has recently had a single grand mal seizure, and lost his driver’s license, at least temporarily, but he can still work full time and do everything else he did before. Does his current inabil ity to drive mean that he cannot perform the “essential job functions,” with the result that the district attorney can discharge him without violating FEHA? Jack contends otherwise, noting that he now makes court appearances by phone, takes public transit, and for the occasional situations where this is not covered, he can get a ride with the police or take a taxi. Besides, there are other attorneys in the office to cover appearances and meetings he can’t readily get to. He says it is a “reasonable accommodation” to waive the driver’s license requirement and allow him to get around by other means than his own driving. The agency claims that attending far-flung meetings any time day or night, even when public transit is not running, is an essential function. Besides, the agency contends quality will suffer if miscellaneous other attorneys cover for McCoy, and paying for additional travel costs because he can’t drive his own car is an “undue hardship” financially. No answer is furnished to this illustration, except to say that the actual details will have to be analyzed to assess whether the proposed accommodation is really that burdensome and disruptive to the agency. Additionally, whatever the outcome on this particular issue, the agency has a duty to have an “interactive dialogue” with McCoy about providing modifications to his current job requirements, or finding him a different assignment he is qualified for if he can no longer perform the essential functions of the prior position.

California’s Fair Employment and Housing Act protects persons with disabilities, broadly defined, from discrimination in employment, and is designed to keep them as productive members of society, placing the burden on employers to not discriminate, to reasonably accommodate qualified persons who can perform the essential job functions, and to have an interactive dialogue with employees to address these issues. These protections are important to understand and comply with, in order to obey the law and provide equal employment opportunities to a group consisting of more than 43 million Americans.