Disability Discrimination

May 12, 2024

Disability Discrimination Claims By Salepeople Fired For “Not Meeting Goals”

A typical disability discrimination claim by a salesperson involves a situation where the employee was fired for not meeting goals due to, in whole or in part, his known medical condition / qualifying disability. The employer then terminates an employee and later argues that the termination was lawful, because meeting the sales goals of the company is an “essential function” of the job. Thus, if that employee wasn’t able to perform that essential function with or without accommodation, then terminating him didn’t violate the law, and the case should be dismissed. See Zamora v Services Specialists, Inc. (2021).

Claimants who find themselves facing the above argument by the employer in litigation should be aware of a number of important precedents that could help them survive a motion to dismiss, or even win their case on the merits:

“Evidence of ‘essential functions’ may include the employer’s judgment, written job descriptions, the amount of time spent on the job

June 13, 2020

Medical Leave Without A Promise of Reinstatement Is Not An Accomodation

by Arkady Itkin

Both California employees and employers must know that an unprotected medical leave without a promise of reinstatement is not an accommodate under California disability laws. An accommodation by definition is a change or adjustment which allows disabled individuals to perform their job. A leave of absence without a corresponding right to return to work is not an accommodation but rather a delayed termination. Burnett v US Air, Inc., 228 F.3d 1105, 1114-5 (9th Cir. 2000). After all, it has been expressly held that requesting an accommodation to a qualifying disability as a protected activity. Head v Glacier Northwest, Inc. (9th Cir. 2005).

All too often, employers “accommodate” an employee by allowing him to go on medical leave and then, upon return, try to get rehired by searching for open, available positions within the company at the time of his return. In many cases, this practice unlawful, as it’s tantamount to terminating an employee and then allowing him the opportunity to apply for an open position, just like any other candidate. On the other hand, offering a vacant position may be a reasonable accommodation, even if the position pays less than the disabled employee’s former job, if he or she can no longer perform the former job’s duties. Gov. Code 12926(p).

June 15, 2019

Time Off To Be Tested For An Illness May Be A Protected Leave

by Arkady Itkin

The California Court of Appeal has recently issued a decision in the Ross v County of Riverside case, which is quite helpful to those employees who take time off to be tested for a serious illness, whether they end up being actually diagnosed with it or not. The court took a very analytical approach to analyzing that cases’ scenario, arriving to a conclusion that employees tho take time off for medical appointment to determine whether they have certain illness should be treated as if they had a protected disability a workplace.

The court noted as follows: A physical disability under the FEHA includes any physical impairment that affects the neurological or immunological systems and limits a major life activity. (Gov. Code, § 12926, subd. (m)(1).) A physical disability “limits a major life activity if it makes the achievement of the major life activity difficult.” (Gov. Code, § 12926, subd. (m)(1)(B)(ii); Cal. Code Regs., tit. 2, § 11065, subd. (l)(3).) ” W]orking is a major life activity, regardless of whether the actual or perceived working limitation implicates a particular employment or a class or broad 19 range of employments.” (Gov. Code, § 12926.1, subd. (c), § 12926, subd. (m)(1)(B)(iii); Cal. Code Regs., tit. 2, § 11065, subd. (l)(1)&(3)(D).) Repeated or extended absences from work for medical appointments constitute a limitation on the major life activity of working. Soria v. Univision Radio Los Angeles, Inc. (2016).

A physical disability may be temporary or short term (Diaz v. Federal Express Corp. (C.D. Cal, 2005) and includes not only physical impairments that are actually disabling, but also physical impairments that are potentially disabling or are perceived as disabling or potentially disabling. (Gov. Code, § 12926.1, subd. (b) [“It is the intent of the Legislature that the definitions of physical disability and mental disability be construed so that applicants and employees are protected from discrimination due to an actual or perceived physical or mental impairment that is disabling, potentially disabling, or perceived as disabling or potentially disabling”].) A physical disability is perceived as potentially disabling when an employer regards or treats an employee as having a physical impairment that has no present disabling effect but may become a disabling in the future. (Cal. Code Regs., tit. 2, § 11065, subd. (d)(6); American National Ins. Co. v. Fair Employment & Housing Com. (1982).

August 24, 2017

EEOC Files Disability Discrimination Lawsuit Against UPS Freight

by Arkady Itkin

On August 8, 2017, EEOC announced filing a lawsuit against UPS Freight, alleging violations of the Americans with Disabilities Act (ADA). “Employers must treat employees with disabilities the same as those without disabilities when issuing workplace benefits,” said EEOC St. Louis District director James R. Neely Jr. According to EEOC, Thomas Diebold began working at UPS Freight in 2006. Diebold suffered a minor stroke in 2013 and disclosed it to the employers during an annual driver physical examination. He was unable to renew his Department of Transportation (DOT) medical examiner’s certificate until December 2014. During the intervening period, Diebold allegedly was discriminated against.

The company, according to EEOC, had a policy of paying drivers who are reassigned to non-driving work due to a disability 10 percent less than drivers who are reassigned for non-medical reasons. Apparently, this was allowed under the union bargaining agreement. However, EEOC argues that this is not a valid justification for this pay difference. “Employers cannot seek refuge from the reach of the ADA by relying on a union agreement when the agreement itself requires discrimination based on disability,” said Andrea G. Baran, the EEOC’s regional attorney in St. Louis.

The agency seeks monetary compensation for Diebold, as well as injunctive relief requiring the company to change its policies and make sure that it does not treat its employees differently in terms of compensation because of their disabilities. This is a good example of how various policies and agreements cannot supersede the law.

May 14, 2017

Can You Be Fired While On Disability Leave Or Medical Leave?

by Arkady Itkin

“Can I be fired while on disability leave?” – this is one of the most common questions that I hear from employees, who have suffered an injury and have to be off work due to that injury or some other illness. The answer to this question is twofold:

(1) The reality is that you can be fired at any time regardless of your disability, disability leave or any other circumstances. No one can force the employer to continue employing you if they don’t want to, except in limited circumstances (i.e. employment relationship covered by a labor union agreement, employment with a public agency and a few other limited circumstances). Otherwise, if you are an at-will employee at a private company, you can leave at any time and you can be terminated at any time.

(2) The more correct question is whether firing you while on disability leave or medical leave would be illegal and could be a basis for a disability discrimination and wrongful termination case. The answer to this question depends on the specific circumstances of your employment and your termination. However, the most important factor is whether the employer had a legitimate reason for terminating you, or there is sufficient evidence that the reason given is just an excuse or a pretext for terminating you because of your disability and disability leave.

September 10, 2016

Can You Be Fired While On Disability Leave?

by Arkady Itkin

One common question employees ask is whether they can be fired while on disability leave and whether that would be legal.

The reality is that an employer can choose to fire you at any time for any reason, and nothing can physically stop them from firing you or force them to continue employing you if they don’t want you around, if you are an at-will employee. Most private sector workers in California are employed at-will, and therefore this applies to them. An employer can choose to fire you even if they know it would violate the law, and then – if you decide to pursue a legal claim against them, you may choose to do so.

The more proper question is whether terminating an employee while that employee is on disability is legal. This depends on a number of factors, including (1) the reasons for that employee’s termination as stated by the employer; (2) the nature of the employer’s business, (3) the employee’s position and job duties with the company, (4) the expected length of disability leave and other factors.

March 14, 2016

Important Clarification for Disability Discrimination Cases

by Arkady Itkin

Recently, the Fifth District Court of Appeal made a very important distinction in its disability discrimination opinion Wallace v County of Stanislaus, which is highly useful to employees-plaintiffs. The court clarified, among other things, what it means to be discriminated “because of” disability. For years, the employers have been fighting disability discrimination, and often effective, by arguing in court that the employee cannot prove that the employer intended to discriminate against an employee because of his medical condition, or that the employer had some kind of ill will toward an employee because of his disability.

The Wallace court rejected the above notion and stated that no such requirement exists in the law. The court distinguished between disability discrimination and other types of discrimination cases and concluded: “… an employer can violate section 12940, subdivision (a) by taking an adverse employment action against an employee “because of” the employee’s physical disability even if the employer harbored no animosity or ill will against the employee or the class of persons with that disability”. This means that technical violation of disability laws, such as failing to engage in the interactive process and / or failing to provide reasonable accommodations in violation of ADA / FEHA can be the basis for employers’ liability, whether those action was taken with malice or innocently.

February 18, 2016

The Most Common EEOC Claims Against Employers in 2015

by Arkady Itkin

Retaliation claims increased by nearly five percent in 2015 and continue to be the leading type of cases filed by workers across the US. Various disability law violations, including ADA disability discrimination claims increased by six percent from last year and are the third largest category of claims filed by employees.

The U.S. Equal Employment Opportunity Commission (EEOC) released breakdowns of the 89,385 charges of workplace discrimination that the agency received in fiscal year 2015. The year-end data shows that retaliation again was the most frequently filed charge of discrimination, with 39,757 charges, making up 45 percent of all private sector charges filed with EEOC. Race, disability and sex discrimination were other most commonly brought charges in 2015,. EEOC said it resolved 92,641 charges in fiscal year 2015, and secured more than $525 million for victims of discrimination in private sector and state and local government workplaces through voluntary resolutions and litigation.

Charges raising harassment allegations made up nearly 28,000 charges of the total number of claims, or 31%. Employees claimed harassment or hostile work environment based on race, age, disability, religion, national origin and sex, including sexual orientation and gender identity.

December 26, 2015

One Common Disability Leave Mistake To Avoid

by Arkady Itkin

The most important advice we have for communicating with your employer during your disability leave is doing it in a way that would make it clear to them why and how long you will not be able to work for. While you, of course, have a certain right to medical privacy and confidentiality, the employer is entitled to know that information which is relevant to your limitations and to your request for disability leave under ADA / FEHA or medical leave.

Many employees, while on leave, make this common disability leave mistake of ignoring the employer’s letters that request additional medical information or clarification of previously provided medical notes. This is not a good idea, and this can often give the employer a legitimate reason to terminate an employee who would otherwise have all the protections that are otherwise available to disabled employees.

For instance, suppose you provide your employer some type of medical notes that states that you are sick and you won’t be able to work for 30 days. Your employer is puzzled and they want to know why exactly you wouldn’t be able to work. While they might not be entitled to know your exact diagnosis, they are entitled to know the limitations that affect your ability to work or prevent you from working. For instance, if you need some type of surgery, the employer is not entitled to know what the surgery is, but they are entitled to know that you, for instance, won’t be able to move or walk for a certain period of time.

October 21, 2014

Don’t Let Your Workers Compensation Claim Hurt Your Wrongful Termination Case

by Arkady Itkin

Many disability discrimination and wrongful termination cases involve a workers compensation claim. One mistake that a wrongful termination claimant should avoid is exaggerating his/her disability when dealing with his workers comp doctors. Stating to the doctor that you are completely unable to work with or without accommodations as a result of your work related injury might increase your workers comp benefits, but it can also “kill” your wrongful termination case, if that case is based on failure to accommodate or failure by your employer to provide reasonable accommodations to you in violation of FEHA and ADA. This is because you can’t claim on one hand that the employer didn’t accommodate you and discriminated against you because of your disability or medical condition, and on the other hand be so incapacitated that no accommodation would be feasible that would allow you to return to work. Remember – an employer doesn’t have to accommodate you if there is no reasonable accommodation available to your condition, given your essential job duties.

You should of course always be truthful about your physical limitations and your ability or inability to perform some or all of your job duties. Your attorney should be able to guide you through the interplay between your workers comp claim and your wrongful termination / disability discrimination case and find the best strategy for both of your cases that would allow you to maximize the benefit from both of your cases without letting your workers comp claim interfere with your ADA / FEHA court claims.