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There
are both state and federal laws making it unlawful for an employer
to wrongfully discriminate
against an employee or applicant for employment based on physical
or mental disability. In general, the state law is superior
to the federal law and a victim of disability discrimination should
seek the protection of state law whenever possible.
A violation of the state law prohibiting disability
discrimination occurs when:
• An employer knew or thought
that an employee
or applicant for employment had -- or had a history of having --
a physical or mental condition, disease or disorder that limited
a major life activity;
• The employee or applicant was
able to perform
the essential job duties with or without reasonable
accommodation for his or her condition, but
• This physical, mental condition, disease or disorder was
a motivating reason why the employer discharged, refused to hire
or took other adverse action against the employee or applicant.
In determining whether a condition, disease or disorder limits
a major life activity, a judge or jury must consider the
condition, disease or disorder in its unmedicated state and without
assistive devices or other mitigating measures. “Working”
is a major life activity, regardless of whether the actual or perceived
working limitation implicates a particular employment or a class
or broad range of employments.
A reasonable accommodation is a reasonable change
to the workplace that (1) gives a qualified applicant with
a disability an equal opportunity in the job application process;
(2) allows an employee with a disability to perform the essential
duties of the job; or (3) allows an employee with a disability to
enjoy the same benefits and privileges of employment that are available
to employees without disabilities.
Reasonable accommodations may include
the following:
• making the workplace readily accessible to and
usable by employees with disabilities;
• changing job responsibilities or work schedules;
• reassigning the employee to a vacant position;
• modifying or providing equipment or devices;
• modifying tests or training materials;
• providing qualified interpreters or readers; or
• providing other similar accommodations for an individual
with a disability.
If more than one accommodation is reasonable, an employer satisfies
its obligation to make a reasonable accommodation if it selects
one of those accommodations in good faith -- even
if this is not the one the individual with a disability prefers.
An employer has a legal obligation to engage in a timely,
good faith, interactive process with an employee or applicant
to determine effective reasonable accommodations, if any, in response
to a request for reasonable accommodations by an employee or applicant
with a known physical or mental disability or known medical condition.
An employer can prove that its conduct was lawful because an employee
or applicant for employment was unable to perform
an essential job duty even with reasonable accommodations,
by proving both of the following: (1) that a particular
job duty was an essential job duty; and (2) that the employee
or applicant could not perform it, even with reasonable accommodation.
In deciding whether a job duty is essential, a judge or jury may
consider, among other factors:
• whether the reason the job exists is to perform
that duty;
• the number of employees available who can perform that duty;
and
• whether the job duty is highly specialized.
An employer can prove that its conduct was lawful because, even
with reasonable accommodations, an employee or applicant for employment
was unable to perform an essential job duty
without endangering his or her health or safety
or the health or safety of others.
If an employer claims that the proposed accommodation would create
an undue hardship to the operation of
its business, the employer must prove that the accommodation would
be significantly difficult or expensive to make.
Pregnancy discrimination
is a form of sex discrimination prohibited by state law.
Harassing an employee because of pregnancy or retaliating against
an employee who asserts her rights under California’s Pregnancy
Disability Leave Law are independent violations of state law.
An employer may not treat pregnancy or conditions related to pregnancy
and childbirth less favorably than other medical conditions in providing
medical insurance or benefits.
An employer must:
• Provide reasonable unpaid pregnancy leave for the period of
medical disability for up to four months (16 work weeks); and
• Reasonably accommodate pregnant employees
who want to be transferred to less strenuous or less dangerous positions
during their pregnancy, on
receipt of a medical certificate that a transfer
is advisable.
• Return the employee to the same position after her leave unless
her job no longer exists because of a plant closure, or unless preserving
her job would substantially undermine the employer’s ability
to operate the business safely and efficiently.
• Reinstate her to a comparable position if the employer is
excused from returning her to the same position or duties -- with
certain exceptions.
You are not alone. See how we will help.
Legal Team
Thomas
L. Tosdal
Position:
Partner
Admitted to Bar: 1975, California; U.S. District
Court, Southern and Central Districts of California; U.S. Court of
Appeals, Ninth Circuit and U.S. Supreme Court.
Education: University of California at Santa Barbara
(B.A., high honors, 1971); Harvard University (J.D., cum laude, 1975).
Of Note: Listed in The Best Lawyers in America (Labor
Specialty). Law Clerk, Honorable Edward J. Schwartz, Chief Judge,
U.S. District Court for the Southern District of California, 1975-1976.
Staff Counsel, Agricultural Labor Relations Board, State of California,
1976-1978. Private Practice, 1978 --.
Member: Association of Trial Lawyers, Consumer Attorneys
of California, Consumer Attorneys of San Diego, American Inns of Court,
San Diego County Bar Association, and State Bar of California.
Ann
M. Smith
Position: Partner
Admitted to Bar: 1985, California and U.S. District
Court, Southern District of California; U.S. Court of Appeals, Ninth
Circuit.
Education: Simmons College; Monterey College of
Law (J.D., cum laude, 1985).
Of Note: 1993 Recipient, Outstanding Trial Lawyer
Award, San Diego Trial Lawyers Association. Labor Negotiator for
United Farm Workers of America 1976-1981 and for San Diego Municipal
Employees Association 1986--.
Member: Consumer Attorneys of California, Consumer Attorneys of
San Diego, San Diego County Bar Association, and State Bar of California.
Languages: Spanish.
Reported Cases: Salgado v. Atlantic Richfield Co.
(9th Cir. 1987) 823F 2nd 1322. Branch v. Homefed Bank (1992) 6 CA.
4th 793.
Fern
M. Steiner
Position:
Partner
Admitted to Bar: 1977, Illinois; 1978, U.S. District
Court, Northern District of Illinois and U.S. Court of Appeals, Seventh
Circuit; 1985, California, U.S. District Court, Southern District
of California and U.S. Court of Appeals, Ninth Circuit; 1987, U.S.
District Court, Northern and Central Districts of California.
Education: Northwestern University (B.A., 1971);
John Marshall Law School (J.D., cum laude, 1977).
Of Note: Listed in The Best Lawyers in America (Labor
Specialty).
Author: "Interference with Rights of Employees,"
Labor Law for the General Practitioner, Chapter 4, 1984.
Member: American Bar Association, Industrial Relations
Research Association, AFL-CIO Lawyers Coordinating Committee, National
Lawyers Guild and its Labor & Employment Committee, San Diego
Bar Association, and State Bar of California.
Jon
Y. Vanderpool
Position: Partner
Admitted to Bar: 1992, California; 1995, Massachusetts;
and U.S. District Court, Southern, Central, and Northern Districts
of California.
Education: Rice University (B.A., 1986); Pepperdine
University (J.D., 1992).
Member: American Inns of Court, San Diego County
Bar Association, and State Bar of California.
Note: Nothing on
this page should be construed as a legal opinion regarding any claim
you may have. For a legal opinion, please speak with an attorney.
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