Disabilities California Style
Although the U.S. Supreme Court has narrowed protection for the disabled,
state laws may provide some help
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Woodwark |
By LORRAINE WOODWARK
© 2003
In 1990, Congress passed the Americans with Disabilities Act (ADA). See 42
U.S.C. §12101 et seq. The law is modeled after Title V of the Rehabilitation
Act of 1973 and the Civil Rights Act of 1964 that eliminated barriers based
on race, national origin, age or sex. The ADA is a civil rights law that prohibits
discrimination against qualified people with disabilities in employment; state
and local government activities; places of public accommodation; transportation;
or telecommunications services.
The ADA was enacted to assure equality of opportunity, full participation,
independent living and economic self-sufficiency. However, the recent holdings
of the U.S. Supreme Court seem to shred disability rights under the ADA.
In California, various state laws also protect disability rights. See the Unruh
Act (Cal. Civil Code §51), the Fair Employment and Housing Act (FEHA) (Cal.
Govt. Code §12900 et seq.), the Blind and Other Disabled Persons Act (Cal.
Civil Code §54) and AB 2222 (Cal. Civil Code §12926.1). These laws
afford legal protections for people with disabilities in California and may
help stem the apparent shredding of disability rights under the ADA.
Shredding federal disability rights
During 2002, the Supreme Court justices provided opinions on four major ADA
cases. These interpretations have had an adverse effect on workers with disabilities.
At the beginning of 2002, Toyota Motors v. Williams, 122 S.Ct. 681, the ADA
limited coverage of employees with carpal tunnel syndrome and other employment-related
impairments.
By spring, the court made it clear that the ADA did not trump seniority rights
over the rights of the employees with disabilities. US Airways v. Barnett, 122
S.Ct. 1516. By the start of summer, the Supreme Court upheld an Equal Employment
Opportunity Commission regulation that permitted an employer to reject job applicants
with medical conditions that might be exacerbated by workplace conditions. Chevron
U.S.A. Inc. v. Echazabal, 000 U.S. 00-1406. Municipalities were determined not
subject to punitive damages in private ADA suits. Barnes v. Gorman, 000 U.S.
01-682.
The result is a narrowing definition of who is considered disabled under the
federal ADA.
Equality, independence, freedom
When he signed the ADA into law in July 1990, President George H.W. Bush was
quoted in several newspapers as saying the occasion heralded a new day when
"every man, woman and child with a disability can now pass through once
closed doors into a bright new era of equality, independence and freedom."
Unfortunately, the reality has not lived up to the promise.
The ADA protects individuals with a disability. This protection is broad since
the law also protects those who have either a record of having a disability,
are regarded as having a disability, are associated with disability organizations,
or have been retaliated against due to having a disability or for acting on
behalf of individuals with a disability.
The ADA's three-pronged test
The ADA defines disability as a physical or medical impairment that limits a
major life activity. This is a three-pronged test and sets the framework to
determine if an individual is protected under the ADA. The California laws also
use the same test for protecting persons with disabilities.
The first part of the three-prong test is "physical or medical impairment."
Examples, but by no means a complete list, of physical or mental impairment
include medical conditions such as epilepsy, diabetes, paraplegia, morbid obesity,
mental illness, HIV/AIDS, alcoholism and former drug addiction. In comparison,
a temporary illness like a broken leg, pregnancy, non-severe obesity, use of
crutches, acne, etc. do not qualify as a physical or mental impairment.
The next prong is "limits." The disability must limit the individual
in performing a task that is more difficult for the individual than it is for
most people or the average person. The ADA requires that the limitation be substantial
while the California laws require the disability cause a limitation in performing
tasks compared to other people or the average person.
Another difference between the California and the federal law is that California
does not require mitigating measures.
The third prong is "major life activity." This prong is very broad
and inclusive. In order to determine whether a disability limits a major life
activity, the task required to be performed must be looked at. This task must
be central to most people's daily lives.
These tasks include brushing your teeth, getting dressed, preparing meals, eating,
etc. The U.S. Supreme Court has emphatically taken a narrower view on what is
a "major life activity."
Ella Williams (Toyota Motors v. Williams, supra.) developed carpal tunnel syndrome
while working at the Toyota plant in Kentucky. She filed an ADA complaint when
the company refused to reassign her to a less physically stressful position.
The 6th U.S. Circuit Court of Appeals ruled that Williams satisfied the ADA
definition of disability due to limitations on the "major life activity"
of manual labor. The court found that Williams was "substantially"
(the federal requirement) limited in her ability to perform repetitive work
and grip tools with her hands and arms extended at shoulder level.
The U.S. Supreme Court unanimously reversed this ruling in an opinion written
by Justice Sandra Day O'Connor that claimed the court of appeals focused on
Williams' "inability to perform manual tasks associated only with the job"
instead of determining whether "[Williams] is unable to perform the variety
of tasks of central importance to people's daily lives," such as household
chores, bathing and brushing her teeth.
Reasonable accommodations
The ADA requires a covered employer (15 or more employees) to provide a "reasonable
accommodation" to a qualified employee with a disability, where such an
accommodation would enable the employee to perform the essential functions of
the job. The accommodations are unique to the individual and are not necessarily
standard for the type of disability. However, the accommodation must effectively
assist the employee.
If an accommodation is not achievable, an employer can discuss with the employee
reasonable alternatives that will work for the employee. Anything that is effective
to let the person perform essential functions of the job will suffice. Working
at home, reassignment of job duties (except seniority), or providing a job coach
(unless it is an undue burden) are all possible solutions to enable the employee
to perform the job duties.
However, if the accommodation is an undue burden, an employer may not have to
provide a reasonable accommodation requested. The ADA does not require that
an employer change its products or services to reasonably accommodate a person
with a disability. Cost alone is not a factor to deny reasonable accommodation.
However, if the employer claims the reasonable accommodation is cost prohibitive,
the total business income is looked at and compared with the cost of accommodation
requested to determine if it is feasible. Certain entities such as businesses
with a large income or the government may not use the defense of undue burden.
A smaller business, however, may not have the income to provide reasonable
accommodations and may successfully defend itself on the undue burden defense.
Many accommodations are easy to achieve and often do not cost the employer much
or any money. The ADA also protects an employee from being surcharged for a
reasonable accommodation.
An employer may deny a reasonable accommodation if the employee is a "direct
threat" to others or to the employee. An employee is a direct threat if
it is determined that the employee poses a significant risk of harm on the job
and it is likely that this harm will occur. The harm must be substantial (severe).
Mario Echazabal sued Chevron after the company refused to hire him when a physical
examination revealed he suffered the effects of hepatitis C, which could be
aggravated by exposure to toxins at the refinery where he was seeking a job.
The U.S. Supreme Court held Echazabal's condition posed direct threat to himself.
No reasonable accommodation could remove this direct threat. However, if the
reasonable accommodation can prevent harm to others or the employee, then the
direct threat defense will be limited.
California's fair playing field
In the vast majority of states (i.e., those without strong anti-discrimination
statutes), the ADA is all that is available to persons with disabilities. Thus,
federal rulings have an immediate and profound effect in those states. On the
other hand, the situation is vastly different in the handful of states that
have enacted their own "disability" statutes (i.e., California, New
York and Illinois).
The focus of California's law is not to give "special rights" but
to provide an even playing field for all. FEHA provides significantly broader
protections in defining covered disabilities in three ways.
First, an individual need only be limited (the federal ADA requires substantially)
in a major life activity and will qualify if his or her physical or mental impairment
makes the achievement of the major life activity difficult.
Second, mitigating measures, such as medications and corrective devices, are
not to be taken into account when assessing whether an individual has a qualified
disability. For example, people with diabetes or epilepsy who use medication
to control their conditions will still qualify even though the medication helps
regulate their condition.
Third, an employee will be considered disabled in the major life activity of
working even if his or her impairment impacts only one particular job, as opposed
to a class of or a broad range of jobs.
The California FEHA also requires that employers provide reasonable accommodations
to qualified workers with disabilities. The FEHA covers more claims and conditions
relating to sick and injured employees, including more types of disabilities,
than does the ADA. FEHA contrasts with the ADA in that it places the accommodation
requirement on employers with five or more employees.
So how does an employee with a disability get an accommodation? An employee
must let the employer know that he/she has a medical condition or disorder and
request the accommodation either verbally or in written form. Failure to request
an accommodation does not activate the protections afforded by disability laws.
Under California law, the employer is required to be receptive to engaging
in a discussion to provide the accommodation. An employer who fails to engage
in the interactive process can be sued for violating California laws, even if
the accommodation would not work. Further, the employee may not be disciplined
for requesting an accommodation.
Pre-employment inquiries
Employers and employees are often confused as to what can or cannot be asked
during pre-employment inquiries. The law is broken down into three parts: before
the offer, after the offer is made and on the job.
Before a job offer is made, an employer is prohibited from asking anything
about a disability, including whether or not someone has a visible or hidden
disability and/or what type of disability. The employment application cannot
include a query whether an applicant has a disability.
However, the application can describe the essential job duties and ask whether
an applicant is able to perform those duties. The application can also ask if
an accommodation will be needed for testing or during the interview. During
the interview stage, no questions can be asked about a person's disability or
whether they have a disability.
After a job offer is made, but before the person has begun work, an employer
can make a conditional offer requiring a medical examination. Such an examination
must be job-related and consistent with a business necessity like safety concerns
for the job applicant or other workers already on the job.
A job offer cannot be revoked for discriminatory reasons. If the medical examination
reveals that the person is unable to perform the essential job functions, even
with reasonable accommodations, a job offer can be revoked.
After the employee starts he/she employment, an employer is prohibited from
asking questions regarding that employee's disability. Under FEHA it is permissible
for employers to ask employee applicants questions regarding the disability
to aid in providing the accommodation.
From March through June 2003, the California State Bar Committee on Legal
Professionals with Disabilities will ask attorneys to complete a confidential
online survey to determine disability-related issues in the legal profession.
For further information, contact
programdevelopment@calbar.ca.gov or call 415-538-2176.
Lorraine Woodwark is a Santa Barbara lawyer who practices both civil and criminal
law in the local court system. She also represents pro bono clients in rural
areas of the state.
Certification
This activity has been approved for Minimum Continuing Legal
Education credit by the State Bar of California in the amount of one hour in
elimination of bias.
The State Bar of California certifies that this activity conforms
to the standards for approved education activities prescribed by the rules and
regulations of the State Bar of California governing minimum continuing legal
education.
Self-assessment test
Answer the following questions after reading the MCLE article on disabilities.
Use the
answer form provided to send the test, along with a $20 processing fee,
to the State Bar. If you do not receive your certificate within four weeks,
call 415-538-2504.
- The ADA is much broader than the FEHA.
- FEHA requires mitigating measures while the ADA does not.
- The defenses of undue burden and direct threat are not absolute defenses.
- A reasonable accommodation may be granted even if other employees with
the same disability do not request that accommodation.
- In Toyota v. Williams (2002) 534 U.S. 184, the Supreme Court determined
that carpal tunnel syndrome substantially limited a major life activity.
- A major difference between the ADA and FEHA is that the ADA requires a
disability to substantially limit a major life activity while FEHA does not
require the limitation to be substantial.
- The ADA defines disability as a physical or medical impairment while California
law is much broader.
- Both the ADA and FEHA provide that part-time or modified work schedules
may be appropriate as reasonable accommodations.
- An employer can inquire into a person's disability before, during and after
employment.
- The ADA bars discrimination against disabled people in employment, public
accommodations and public transit, but does little to protect and enforce
these rights.
- A substantial limitation on a major life activity must not only prevent
an individual from performing a task but also prevent them from performing
daily tasks such as brushing teeth, preparing meals and dressing.
- Under California law, medication that corrects a condition is not taken
into consideration when assessing whether an individual has a qualified disability.
- . California law requires employers with 15 or more employees and federal
law requires employers with five or more employees to provide reasonable accommodations
to their employees with disabilities.
- The ADA protects a qualified individual with a disability and may also
protect those who have either a record of having a disability or are regarded
as having a disability.
- The ADA does not protect those who are merely associated with an individual
who has a disability.
- Employers can inquire on job applications whether an applicant requires
an accommodation during testing or during the interview process.
- If an employee is a direct threat to others or themselves, even with an
accommodation, an employer can refuse to hire that person.
- Under FEHA, an employee will be considered disabled in the major life activity
of working even if his or her impairment impacts only one particular job,
as opposed to a class of or a broad range of jobs.
- In California, an employer who fails to engage in the interactive process
can be sued for violating the law, even if the accommodation would not work.
- An employer cannot make a conditional employment offer requiring a medical
exam.
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