What is disability discrimination under FEHA?
Short Answer
Under the California Fair Employment and Housing Act (FEHA), disability discrimination generally occurs when an employer takes an adverse employment action because of an employee’s or applicant’s actual, perceived, or associated physical or mental disability. FEHA also separately prohibits failure to reasonably accommodate a known disability and failure to engage in the interactive process.[1]
Governing Law
FEHA prohibits an employer from refusing to hire, discharging, or otherwise discriminating against a person in compensation or the terms, conditions, or privileges of employment because of physical or mental disability.Cal. Gov’t Code § 12940(a).[1]
“Disability” broadly includes:
- An actual physical or mental condition limiting a major life activity;
- A record of such a condition;
- Being regarded or treated as having such a condition; and
- Being perceived as associated with someone who has, or is perceived to have, a disability.Cal. Gov’t Code § 12926(j), (m), (o).[2]
FEHA also makes it unlawful to:
| Prohibited conduct | Authority |
|---|---|
| Fail to provide reasonable accommodation for a known disability | Cal. Gov’t Code § 12940(m) |
| Fail to engage in a timely, good-faith interactive process | Cal. Gov’t Code § 12940(n) |
| Retaliate against a person for requesting accommodation | Cal. Gov’t Code § 12940(m)(2) |
| Harass an employee because of disability | Cal. Gov’t Code § 12940(j) |
Reasonable accommodations may include modified schedules, job restructuring, reassignment to a vacant position, modified equipment, or other effective adjustments.Cal. Gov’t Code § 12926(p).[2]
An employer may nevertheless refuse to hire or discharge an employee whose disability prevents the employee from performing the essential duties of the position, even with reasonable accommodation.Cal. Gov’t Code § 12940(a)(1).[1]
Under Green v. State, 42 Cal. 4th 254, 262–63 (2007), a plaintiff alleging FEHA disability discrimination must generally prove the ability to perform the essential functions of the position with or without reasonable accommodation.[3] That qualification requirement applies to discrimination claims, though accommodation and interactive-process claims may involve distinct elements.