The federal American with Disabilities Act of 1990 (“ADA”) and the California Fair Employment and Housing Act (“FEHA”) both forbid employers from discriminating against qualified employees on the basis of the employee’s disability or perception that the employee is disabled.
The ADA and FEHA also require employers to provide “reasonable accommodations” and to conduct a good faith, timely, interactive process with the employee to determine a possible reasonable accommodation.
Both laws prohibit discrimination against employees who have a physical or mental impairment. In order to qualify as a disability, the physical or mental impairment must limit how the person performs a major life activity (under the ADA however, the physical or mental impairment must “substantially” limit a major life activity). Major life activities include things such as working, seeing, hearing, sleeping, breathing, walking, thinking, learning, and the operation of major bodily functions. Also, an employee is considered disabled even if mitigating measures reduce the severity of the disabling condition. For example, the use of medication, medical devices, or technology would be a mitigating measure.
The law also prohibits discrimination against employees who are “regarded” as having a disability. For example, the law protects employees from employers who refuse to hire employees with a disability because of the employers’ perception that the employee could not do the work.
The disability discrimination laws require that the employee must be “qualified” for the employment position. An individual is “qualified” if he or she can perform, with or without reasonable accommodation, the “essential functions” of the employment position. The essential functions of a job or position include the employer’s judgment whether the function is essential; written job descriptions; time actually spent on a specific function; and work performed by past and present incumbents.