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Pocket Guide to Disability Discrimination in the California Workplace Public and Private Sectors

By M. Carol Stevens et al.
3rd edition, 2015

$27 each

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Disabled California workers generally turn to two statutes to remedy workplace disability discrimination: the federal Americans with Disabilities Act (ADA) and the California Fair Employment and Housing Act (FEHA). This guide covers both, as well as Equal Employment Opportunity Commission and Department of Fair Employment and Housing regulations implementing the acts.

The new edition includes

  • Similarities and differences between the FEHA and the ADA, including a chart that compares the key provisions of the laws
  • References to the text of the law and the enforcing agencies' regulations that implement the statutory requirements
  • A discussion of other legal protections afforded disabled workers, such as the federal Rehabilitation Act of 1973, the federal Family and Medical Leave Act and corresponding California Family Rights Act, and workers compensation laws
  • Major court decisions that interpret disability laws;

The guide is a valuable reference and training tool, and helpful to anyone who needs to understand disability discrimination laws that apply in both the public and private sectors in California.

M. Carol Stevens, a partner in the law firm of Burke, Williams & Sorensen, LLP, has practiced employment and labor relations law for public agencies in California since 1978. One of the leading legal practitioners in the field of public employment law, Stevens advises employers in nearly all facets of labor relations and employment litigation. For more than 37 years, she has represented public employers in grievance and interest arbitrations, PERB proceedings, state/federal courts, and other administrative procedures. Stevens is well known for creatively resolving difficult and complex labor relations disputes.

Coauthors Kelly Trainer, and Katy Suttorp, partners with Burke, Williams & Sorensen, provide legal services to public agencies regarding a variety of topics, including training, employment litigation, discrimination, labor relations, negotiations, PERS, and STRS matters.

Coauthors Sheila Delshad, and Malaika Billups, are associate attorneys with Burke, Williams & Sorensen's employment law group.

TABLE OF CONTENTS

I. Introduction1
II. How Do the FEHA and ADA Compare? 4
III. Which Employers Do the Laws Cover? 23
    A. Which Employers Does the FEHA Cover? 23
    B. Which Employers Does the ADA Cover? 24
IV. Whom Do the Disability Laws Protect? 26
V. What Are Covered Disabilities Under the Laws? 28
    A. What Is the Definition of "Disability" Under the FEHA? 28
        1. What Are Major Life Activities Under the FEHA? 31
            a. Is working a major life activity under the FEHA? 31
        2. When Does a Physical or Mental Condition Limit a Major Life Activity Under the FEHA? 32
            a. Does the FEHA consider mitigating measures in determining whether a major life activity is limited? 32
            b. Does the FEHA recognize impairments that are temporary as capable of limiting a major life activity? 33
    B. What Is the Definition of Disability Under the ADA? 34
        1. What Is a "Physical or Mental Impairment" Under the ADA? 37
        2. What Is a "Major Life Activity" Under the ADA? 39
            a. Is working a major life activity under the ADA? 41
        3. How Does an Impairment "Substantially Limit" a Major Life Activity Under the ADA? 43
    C. When Do the Laws Protect Persons Who Not Have an Actual Disability, and Never Have? 50
        1. Regarded as Having a Disability 50
        2. Associates of Disabled Individuals 51
        3. Other Individuals 52
VI. What is an Essential Function and Its Impact on"Working"? 53
    A. How Does Protection Under the Laws Depend on a Person Being "Qualified"? 53
    B. How Do the Laws Define "Essential Functions" or Purposes of Determining Whether an Individual Is "Qualified"? 55
VII. What Is the Employer's Obligation to Engage in the Interactive Process and Provide Reasonable Accommodation? 59
    A. Does the Employee Require "Reasonable Accommodation"? 59
    B. When Must Employers Engage in an Interactive Process? 65
    C. Is a Public Sector Employee Entitled to Union Representation During the Interactive Process? 68
    D. What Medical Information May Employers Request in an Interactive Process? 69
    E. How Should Employers Identify Possible Accommodations in an Interactive Process? 70
    F. When May Employers Refuse to Accommodate an Employee? 74
VIII. What Other Obligations Do Employers Have in Complying with Disability Discrimination Laws? 78
    A. What Obligations Does the ADA Impose on Employers? 81
    B. What Obligations Does the FEHA Impose on Employers? 79 81
    C. What Practices Do the Laws Regulate During the Pre-Employment Process? 81
        1. Job Announcements and Job Training Programs 81
        2. Administering Tests and Accommodating Test-Takers 81
            a. Physical agility tests 82
            b. Drug tests 82
        3. Pre-Employment Medical Exams and Inquiries 84
            a. What questions may employers ask job zapplicants? 84
            b. What limitations do employers have in making medical inquiries and requiring medical examinations for applicants? 85
        4. Confidential Medical Files 85
    D. What Practices Do the Laws Regulate During Employment? 89
        1. Work Rules 89
        2. Drug Use 91
        3. Alcohol Use 94
        4. Workplace Rules Regarding Substance Abuse 95
        5. Employee Medical Exams and Inquiries 96
        6. Retirement and Health Care Plans 97
            a. Recertification 98
            b. Medical plans 98
            c. Safe harbor 99
    E. What Post-Employment Obligations Do the Laws Impose? 100
    F. What Other Practices Do Disability Discrimination Laws Prohibit? 101
        1. Coercion 101
        2. Harassment 102
        4. Retaliation 106
IX. How Are Disability Discrimination Laws Enforced? What Remedies Are Available? 108
    A. How Are FEHA and ADA Discrimination Protections Enforced? 108
        1. What Are the Administrative Prerequisites to Bringing a Disability Discrimination Lawsuit? 108
        2. When May Disability Discrimination Claims Be Subject to Arbitration? 113
        3. Who May Bring a Disability Discrimination Lawsuit? Who Can Be Sued? 117
        4. What Defenses May Employers Invoke? 121
            a. Direct threat 122
            b. Food handlers 126
            c. Conflicting federal laws and regulations 126
            d. Smoking 127
            e. Employer's conduct has a legitimate, non- discriminatory basis 127
    B. What Remedies Are Available to Persons Who Experience Unlawful Discrimination? 130
        1. ADA Damages 130
        2. FEHA Damages 133
        3. GINA Damages 135
X. How Are Disability Discrimination Laws Enforced? What Remedies Are Available? 108 136
    A. ADA Titles II and III 136
        1. Title II 137
        2. Title III 138
    B. The Rehabilitation Act of 1973 140
    C. The Federal Family and Medical Leave Act (FMLA) and California Family Rights Act (CFRA) 142
        1. Coverage and Eligibility 143
        2. Medical Information 144
        3. Conclusion of Leave and Return to Work 144
    D. Pregnancy Leave 146
    E. The Healthy Families, Healthy Workplaces Act of 2014 147
    F. Workers' Compensation 148
    G. Wrongful Discharge in Violation of Public Policy 151
    H. Confidentiality of Medical Information Act 152
    I. Genetic Information Nondiscrimination Act 152 152
XI. Table of Cases 153