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TURNING EMPLOYER WRONGS INTO EMPLOYEE RIGHTS

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Disability and Medical Condition (Cancer) Discrimination in California Employment

Discrimination in California employment based on disability is made illegal by Cal Gov’t Code Section 12940(a). The federal equivalent is the Americans With Disabilities Act (“ADA”). An employee is protected if he or she has a qualifying mental or physical disability (ie, medical condition  is a health impairment related to or associated with a diagnosis of cancer or genetic characteristic. Similarly, if an employer “regards” an employee as having this condition, it is protected.

Physical disability claims (in addition to cancer) require that your employer have at least five employees. Mental disability requires 15 or more employees, but either classification may include part time employees. Include a persona

acting as an agent of an employee. Special rules apply for religious not for profit institutions, except when operating as a health care facility. Physical disabilities are physiological disorders affecting one or more of the body’s major systems and limiting one or more major life activities. These life activities including “caring for one’s self, performing manual tasks, walking, seeing, hearing, special, breathing, learning and working.” Cal Code Regs tit. 2, Section 7293.6(e)(2)(a). Under California law, “working” is a major life activity, regardless of whether the actual or perceiving working limitation implicates a particular employment or a class or range of jobs.

Also protected as physical and mental disabilities are chronic or episodic conditions such as HIV/AIDS, epilepsy, hepatitis, seizure disorders, diabetes, clinical depression, bipolar disorders, multiple sclerosis and heart disease. Mental disability are physiological disorders such as retardation, emotional or mental illnesses and specific learning disabilities.

Elevated blood pressure, sensitivity to smoke, back injuries, molecularity, and even obesity (where it has a physiological, systematic basis) is protected. Temporary disabilities are probably not protected. In a recent case, Sanders vs. Arneson Productions, the court held that a temporary psychological impairment which lasted less than four months was not a disability within the meaning of the ADA.

A qualified employer may not refuse to hire or terminate someone because of that individual’s disability, and may not fail to make a reasonable accommodation for the known physical or mental disabilities. So long as the employer is aware of the need for an accommodation, the employee need not make a specific request. Priliman vs. United Air Lines, Inc., 53 Cal. App 4th 935, 949-50 (1997).

Evidence of intentional discrimination may be shown by direct or circumstantial evidence. Direct evidence might be a racial epithets or cancer-related comment by a supervisor. A negative or adverse employment decision does not need to be based solely on the protected condition, as long as the plaintiff shows that were a “casual connection” between the employee’s protected status and the adverse employment decision. In the absence of direct evidence of discrimination based on medical condition or disability, a plaintiff may establish a prima facie case by showing that he or she belongs to the protected class, was subject to an adverse employment action, was treated differently than similarly situated employees not in the protected class and there is sufficient causal connection.

In filing a lawsuit for disability discrimination, there is a requirement to file a claim within one year of the last act of like-kind discrimination with the Department of Fair Employment and Housing. The time may be extended for up to 90 days if the plaintiff did not learn of the discrimination with a year of its lost occurrence. If you are told you are being fired in two weeks, then the one year begins to run from the actual date of termination, not the date on which you were notified. There are a few limited exceptions to the claim filing requirement, for example, when your claim is constituted as a common law tort claim.

The relief you are entitled to for discrimination can include injunctive relief, emotional distress, back pay, front pay (the amount you are likely to lose int he future), prejudgment interest, attorney fees and punitive damages.

This blog should be considered educational in nature and not legal advise. Only an attorney licensed in your state and familiar with the facts of your case can give you valid legal advise.