One of the most easily misunderstood topics in discrimination law, including disability discrimination and retaliation lawsuits, is what actions constitute discrimination. In regards to Disability discrimination the Fair Employment and Housing Act (FEHA) and the Americans with Disabilities Act (ADA), and describe two similar but somewhat different definitions for types of actions are discriminatory.

FEHA specifically lists actions that would be discriminatory in Government Code Section 12940, subd. (a). It includes all the following acts motivated because of an individual’s disability:

  • Refusing to hire;
  • Refusing to train for a program that would lead to employment;
  • Firing from a job or training program that would lead to employment;
  • Or discriminating in the terms of employment including compensation, conditions, or privileges.

ADA on the other hand leaves the term open to more interpretation. ADA includes a list of discriminatory acts, which include the above but also includes discrimination in regards to job application procedures, and job training regardless of whether it would lead to employment. Additionally Section 12112 of ADA forbids acts based on a job applicant’s disability that limits, segregates, or classifies a job applicant in a way that would “adversely affect the opportunities or status” of the applicant.

The California Court of Appeals recently reviewed a case that showed the limits of what an adverse employment action could be under California law. In the case of Jeffrey v. Temple City, WL 501426, (Feb. 11, ) an employee, Randolph Jeffery, brought a disability discrimination claim under FEHA. Jeffrey was a custodian for the Temple City School District who claimed that after receiving a serious injury from a car accident that he was terminated from the school district; he claimed that he was terminated because of the disability he received in the car accident. However, the School District argued that it did not terminate Jeffery, rather they sent Jeffrey a letter saying that he would be placed on a 39 month rehiring list, and that at the end of the 39 months Jeffrey would be rehired. However, Jeffery said that he believed that he was actually being terminated because the letter read: “RE: Termination of Employment”. Nevertheless the court held that getting placed on a rehiring list in this case was not an act of discrimination because Jeffrey could not prove that he could do his job duties with reasonable accommodation, and being placed on the list was not actually a termination because he would be rehired.

The Jeffrey case demonstrates the limits of what a discriminatory action can be, but it also demonstrates the importance of getting legal advice as soon as possible to help you understand the full extent of your rights. If you have been the victim of discrimination contact an experienced attorney right away. Contact Cunningham Law, APC for a free consultation at (951) 213-4786.

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