Discrimination |
February 27, 2017

Employment Attorney San Francisco: What Is Disability Discrimination,

Employment lawyers in San Francisco helping disability discrimination victims understand their rights

Discriminating against an employee or a job applicant because of a disability violates California and federal law. No person who is qualified for a job and capable of performing it should be excluded from employment simply because the person is disabled. The disability discrimination attorneys at San Francisco’s Minnis & Smallets help individuals with disabilities protect their right to equal employment opportunities.

Disability Defined

California’s discrimination laws define a disability as a physical or mental impairment that limits one or more major life activities. Breathing, seeing, hearing, learning, walking, and performing manual tasks are examples of major life activities. Working is also a major life activity.

Employees or job applicants who are not sure whether their impairment meets the employment law definition of a disability should seek legal advice.

Protected Individuals

Discrimination laws protect qualified employees and job applicants who:

  • are disabled;
  • have a record or history of being disabled;
  • are regarded or treated as having a disability; or
  • associate with a disabled person.

An employee or job applicant is qualified if that person meets the requirements for performing a job and can perform the job’s essential functions with or without reasonable accommodations.

Job Applications and Medical Examinations

The law prohibits employers from asking job applicants about the nature or severity of their disabilities. An employer may, however, ask job applicants about their ability to perform the essential functions of the job and may generally ask how the applicant would perform those duties.

The law also prohibits employers from requiring job applicants to submit to a physical examination. An employer may, however, condition a job offer on passing a physical examination, but only if the examination is required of all employees who perform the same job.

If a medical examination reveals a disability, the employer cannot exclude the job applicant from employment for that reason unless the disability would prevent the employee from performing an essential job function and no reasonable accommodation is available that would allow the employee to perform that function.

Reasonable Accommodation

A reasonable accommodation is a modification or adjustment in the job or work environment that would allow a disabled employee:

  • to perform the essential functions of the job, or
  • to enjoy the same rights, privileges, and opportunities as other employees.

Examples of reasonable accommodations include moving the employee’s workstation to an accessible area, reassigning non-essential job duties to others, and providing equipment (such as a screen magnifier) that makes it possible to do the job.

The employer does not necessarily need to provide the accommodation that the employee requests. If more than one reasonable accommodation is available that will accomplish the purposes mentioned above, the employer may choose which one to provide.

Employers and employees sometimes disagree whether the employer’s choice of an accommodation is sufficient to meet the goals described above. It may be necessary to negotiate with an employer to arrive at a reasonable accommodation that complies with the law. The disability discrimination attorneys at Minnis & Smallets assist disabled employees who have been unreasonably denied a reasonable accommodation that they need to perform the essential functions of their jobs.

Undue Hardship

An accommodation is reasonable if the employer can provide it without undue hardship. An undue hardship is one that is significantly difficult or expensive to provide under the circumstances.

Undue hardship is often a matter of cost. Whether the cost of providing an accommodation is undue depends on the size and financial resources of the employer, among other factors.

Job Standards

An employer is not required to modify the essential functions of a job or to lower performance standards for those functions in order to accommodate a disability. However, when a job duty is “marginal” rather than “essential,” a reasonable accommodation might include giving the employee more time to perform the duty or reassignment of the duty to a different employee.

The difference between an essential function and a marginal function is not always easy to discern. The employment discrimination lawyers at Minnis & Smallets investigate the circumstances of each case to help employees decide whether the failure to provide a requested accommodation was unlawful.

Discrimination Remedies

Employees who have been subjected to disability discrimination may be entitled to a variety of remedies, depending upon the nature of the harm they suffered. Applicants who were denied a job and employees who were terminated because of a disability may be entitled to back pay and to reinstatement. Employees who experienced other kinds of discrimination, including retaliation for requesting an accommodation, may be entitled to other forms of compensation.

Employees who have been subjected to disability discrimination in San Francisco and the surrounding area can ask the employment discrimination attorneys at Minnis & Smallets about the remedies to which they might be entitled. To schedule a free consultation, call us at 1-415-551-0885 or submit our online contact form.