The first case presents an example of an applicant being discriminated against based on her disability even before starting to work. On November 1, 2016, San Diego health system Sharp Healthcare paid $90,000 as part of a settlement after the Equal Employment Opportunity Commission (“EEOC”) filed the disability discrimination lawsuit. In the lawsuit, the EEOC represented an applicant for a position as a surgical technician who was offered the job contingent on passing a medical exam. After the results, Sharp rescinded the offer because of a perceived disability – the applicant had an ankle condition which did not affect her ability to do the job. In fact, a short time after she was rejected, the applicant began working in that role at another local healthcare facility. To ensure that Sharp does not repeat its disability discrimination, Sharp also agreed that as part of its settlement with the EEOC it will hire a third party neutral equal employment monitor, update its disability accommodation policies, train its workforce on an annual basis for any disability discrimination, post notices and submit reports on the progress to the EEOC.
In another recent case, a former Home Depot worker sued the large retail establishment alleging disability discrimination, retaliation, and wrongful termination. In the lawsuit, the worker claims that she was injured in the workplace and was restricted by her physician’s orders in performing squatting, kneeling, climbing ladders, and standing longer than 30 minutes. She also claims that her supervisor did not let her see a physician or give her the paperwork for filing the medical claim for three weeks after the injury. Because the supervisor did not believe her, the worker worked through the pain. She then alleges that she reported this violation to the Human Resources (HR) department but was not allowed to be transferred to another position. Finally, she was sent home on disability leave and Home Depot would not respond to her attempts to return to work.
Part of what the Americans with Disability Act (“ADA”) and California’s Fair Employment and Housing Act (“FEHA”) require is that the employer engage the employee in reasonable dialogue about her disability and provide reasonable accommodation if she is able to perform the essential functions of her position with those accommodations. However, here, Home Depot did not comply with the law even though the disability did not conflict with her ability to complete the essential functions of her job. In her complaint, she is asking for an injunction so that Home Depot is stopped from continuing the unlawful practices in addition to lost wages, benefits, damages for emotional distress and attorneys’ fees and court costs.
See these other blogs for further information on disability discrimination.
FEHA protects employees with mental and physical disabilities as well as those with qualifying medical conditions against discrimination, harassment, and retaliation. An employer must “regularly” employ five or more employees to be covered by FEHA. This means that if a business has five or more regular employees, then FEHA and its protections apply to those employees.
ADA discrimination begins with protecting the job applicant, where an employer with at least 15 employees cannot discriminate against a qualified applicant with a disability. It also protects employees from unlawful termination, demotion, harassment or unfair working conditions resulting from a disability. One of the primary protections is the requirement of employers to provide “reasonable accommodation” where they must alter the way that the work may be performed, through special equipment or scheduling, to allow disabled individuals to complete their jobs. The only way that employers would not be required to provide this accommodation is if it would result in “undue hardship” to the employer. Undue hardship may be extremely problematic or costly to the employer. Either way, the disabled employee must complete the main functions of his or her job when he or she is provided with a reasonable accommodation. Our Los Angeles based employment law attorneys carefully follow the trends in this unique area of law and provide free consultations.
If you believe that you, or another employee, suffered an employment law matter related to disability discrimination or retaliation in the workplace, prompt action to preserve your rights is vital since the statute of limitation is a short one year. Contact the experienced employment law attorneys at Stephen Danz & Associates for a free no obligation consultation to discuss your circumstances and legal options.