California’s Fair Employment Housing Act (FEHA) prohibits discrimination/harassment on the basis of race/color, religious creed, national origin/ancestry, physical disability, mental disability, medical condition (to include no genetic testing), marital status, sex, age, and sexual orientation. This California law provides a broader protection to employees than ADA. Employers must engage in a good faith interactive process with employees who have disabilities to determine the appropriate reasonable accommodations that might overcome the employee’s job limitations. Under AB 2222, the duty to engage in this process is a stand-alone statutory requirement.  An employer will violate the statute by failing to proceed with the interactive process, even if accommodation is not possible. FEHA applies to any employer with five or more employees, and both industrial and non-industrial disabilities fall under statute.

The Department of Fair Employment and Housing (DFEH) enforces FEHA. An employee’s rights under FEHA may not be waived or bargained away via a Collective Bargaining Agreements (CBA), although a CBA may affect whether an accommodation is considered reasonable.  Under Workers Compensation a Compromise and Release does not release FEHA liability. Employee’s can receive a C&R and still sue under FEHA.  AB 2222 expands the definition of disability under FEHA, adopts a tough new standard for post-offer, pre-employment medical exams and inquiries and imposes further obligations on employers to engage in an “interactive process.”

It is the legislative intent of the Fair Employment and Housing Act (FEHA) to provide more protection for individuals with disabilities than the federal Americans with Disabilities Act (ADA) of 1990. The statute, as it relates to disabilities, provides protections independent from those in the American with Disability Act.

The law of this State contains broad definitions of physical disability, mental disability and medical condition. It is the intent of the legislature that physical and mental limitations are not required to be “substantial,” and that “working” is a major life activity regardless of whether the actual or perceived working limitation implicates a particular employment or a board class of jobs.

LEGAL REQUIREMENTS

“The Fair Employment and Housing Act requires that, “Once a disability that is protected under the law is established, an employer is obligated to provide a reasonable accommodation unless the accommodation would represent an undue hardship to the business operation.”¹

This is critical as an employer could fully accommodate a disabled person and still violate the statute if the decisions made were done unilaterally or without first engaging in an interactive process. More directly, employers must meet with employees and discuss openly all options available that would allow an employee to resume/maintain employment, performing all of the essential functions of a position with or without reasonable accommodation.

THE INTERACTIVE PROCESS OVERVIEW

FEHA “makes it an unlawful employment practice for an employer or other entity covered by the act to fail to engage in a timely, good faith, interactive process to determine effective reasonable accommodations, if any, at the request of an employee or applicant with a known disability.”²

Once an employee is determined to be disabled and protected under FEHA the employer is obligated to meet with the employee to discuss accommodation options. This is achieved via the following three actions: Interactive Process: The Interactive Process (IP) describes all of the activities that occur from the moment that a request is made or the employer perceives an employee to be disabled. These include verbal communications, letters and notices, meetings, research and determinations. Accommodation Meeting: The event(s) of meeting with the employee or applicant. The Accommodation Meeting is an event that must take place as part of the Interactive Process. It is in this meeting that Reasonable Accommodation options are discussed and often determined. Reasonable Accommodation: Reasonable Accommodation (RA) is what is offered or provided to the disabled employee that allows the disability to be overcome without causing undue hardship to the employer or posing a direct threat to the employee or others.

DETERMINING ELIGIBILITY

Employers are to engage with employees or applicants who have a known disability. However, often a request by an employee does not produce requisite information to qualify someone as disabled. In addition, there are times when an employer may perceive an employee or applicant to be disabled. In these cases medical certification is necessary. An employer may require medical certification to determine the eligibility of a request. Employers are not to be provided diagnostic information, but simple certification of a disability status and a listing of all functional limitations/work restrictions.

Persons who are afforded protection under FEHA are:

Disabilities protected are intended to be broad. Nearly every condition that impacts a person’s ability to work or perform a major life function is covered.

Some lesser known protected disabilities are:  Learning disability, Cosmetic disfiguration, Reproductive problems, Past or present conditions (e.g. cancer survivor), Genetic disorder (e.g. breast cancer gene carrier)

There are only very few “conditions” that the law specifically excludes from protections. These are:  Sexual behavior disorders, Kleptomania, Pyromania, Illegal use of controlled substances or drugs (employees in recovery are in most cases protected), Compulsive gambling, Employers are not obligated to accommodate for medical marijuana use.

Note: Employee conduct resulting from a disability is part of the disability and not a separate basis for termination or discipline.³ If an employer is aware of a disability or perceives an employee to have a disability that may be contributing to a performance issue, the employer must address the possible connection. This is done by engaging with the employee to determine if they have a protected disability and if there are accommodations possible to mitigate the negative behavior/actions.

STATUTES AND LIMITATIONS

An employee has 365 days from a discriminatory act to file a claim with Department of Fair Employment and Housing (DFEH) and 300 days to file with the Equal Employment Opportunity Commission (EEOC).

An employee’s rights under FEHA may not be waived or bargained away via a Collective Bargaining Agreement (CBA), however, a CBA affects whether an accommodation is considered reasonable. For example, promotion provisions cannot be violated in the accommodation process. Employers must also be aware that a workers’ compensation Compromise and Release does not automatically release FEHA liability unless explicitly provided for this in the agreement.

If an employee files a claim with DFEH or EEOC the employer will get a copy of the complaint and be required to respond to each allegation. The employee must cooperate fully and retain all written materials until the case is resolved. The entity will conduct the investigation, request documents and interview whomever they deem relevant to the case. If the EEOC or DFEH find the complaint is substantiated they will set the matter for conciliation. If not settled, the hearing will go before the Fair Employment and Housing Commission (FEHC) or Superior Court. All evidence gathered by DFEH can be used in court if case goes to trial.

Employees may also request a right to sue letter so that they may proceed directly to civil court.

Fees and Fines

FEHC remedies include:  Back pay, Out of pocket losses, Affirmative relief, Reinstatement, Training requirements for the Organization, Damages, Policy changes, Emotional distress damages fees, Administrative fines and fees limited to $150,000.00
                                                           
Superior Court remedies include:  An Award, Unlimited emotional distress, exposure to unlimited punitive and prevailing party may recover legal fees.