Under the Americans with Disabilities Act (ADA) and the Fair Employment and Housing Act (FEHA) proving an initial case of disability discrimination is deceptively simple. Although the requirements to prove a case under ADA and FEHA differ slightly, they are very similar. This post will cover what is required to make a prima facie case. Keep in mind that proving a case after this initial step (prima facie case) gets a little more complicated and will be left for later posts.

First, the individual must be a qualified individual. This means that they must have the necessary skill, education, experience, or other job qualifications for the position they are applying for or hold. They also must be able to perform the essential functions of the job, even if they must have reasonable accommodation to perform these duties.

Next the qualified individual must also have a disability. A disability means any physical or mental impairment that “substantially limits” one or more major life activity. However, disability can also mean having a record of having an impairment or being regarded as having an impairment by others.

By contrast, FEHA will cover the same individuals as ADA, but the definition of who is covered is also more inclusive because it simply requires the individual to have a medical condition, which is broadly construed to include a wide range of conditions, including physical and mental disabilities. Unlike ADA, the text of FEHA includes a very detailed description of disabilities. Mental disabilities may include any mental illness, intellectual disability, emotional illness, or any other mental or psychological disorder that requires special services. However, sexual behavior disorders, compulsive stealing, pyromania, and abuse of unlawful substances are not covered. ADA has similar exceptions.

So long as the employee or applicant meets the above definition, they may not be discriminated against on the basis of their disability. Many people forget that this is all that is necessary to bring an initial case. For example, if a disabled individual was passed over for a job and the person hired had better experience does not necessarily mean that the disabled individual can not prove they were discriminated against. Most employers when charged with allegations of discrimination will often try to say that they made their decisions to hire someone else because the other person had better credentials, nicer demeanor, or something similar. These reasons may be half true, because if the person performing the hiring considered the disability as a negative in weighing candidates at all, they have committed illegal discrimination, even if there were legitimate, nondiscriminatory, reasons to hire the person.

The difficult part of most cases is that many employers do not say directly that they considered the individuals disability in hiring, however this can often be inferred by a number of ways including: if the employer asked about the disability in an inappropriate way, if they acknowledged the disability when it was brought up, or if they gave off signs of physical discomfort once the disability is discussed.

To learn more about disability discrimination in the workplace and in hiring schedule a free consultation today with the experienced California labor and employment attorneys all (951) 213-4786.