How to prove failure to accommodate disability?

You are likely reading this article because you fell ill, have an injury, and/or have an upcoming surgery and you find yourself in a hostile work environment.  

Although the type of evidence you will need to prove disability discrimination is different in every case, below is a general overview.  Generally, you may need to present proof of the following:

1. You have to show that you have qualifying disability:  A qualifying disability may be temporary or permanent.  Generally, a health issue that interferes with your ability to work is a disability worthy of protection.  

For purposes of California law, the term “disability” is broadly construed to include but not limited to a health issue that: “affects one or more of the following body systems: neurological; immunological; musculoskeletal; special sense organs; respiratory, including speech organs; cardiovascular; reproductive; digestive; genitourinary; hemic and lymphatic; circulatory; skin; and endocrine; and limits a major life activity.”  2 CCR § 11065

Not all physical or mental health conditions, however, qualify as a “disability” worthy of protection from discrimination (e.g. sexual behavior disorders, compulsive gambling, etc.).  

However, you may also have a claim for disability discrimination:

• if you do not actually have a qualifying disability but are wrongfully perceived to be suffering from a qualifying disability; or
• because of your relationship with a person with a disability. 

1. You can perform your essential job duties (with or without an accommodation):  Keep in mind, not all job functions are essential to your position.  

1. You gave notice of your disability to your employer:  You have to establish that you gave the employer notice of your disability.  Unless there is some evidence that an employer knows that you are suffering from a disability (as that term is defined by FEHA), you will not be able to claim that you were terminated or somehow treated unfairly because of a disability.  Vague statements are not enough. Your employer’s handbook likely has steps for you to follow. Please do not assume your employer is aware of your health issue or the full extent of your limitations.  

A request for a medical leave of absence, without more, may qualify as proper notice of disability.  

• Importantly, you are not required to waive all your privacy rights to obtain a medical leave of absence or an accommodation.  Disclosure of exact diagnosis is not required. Be mindful of what information you disclose.  

1. Document any discriminatory treatment: Disability discrimination appears in many forms and can be proven via direct or circumstantial evidence.  Direct evidence proves a fact on its own without requiring the jury to make an inference. You are fired because of your disability!  This statement (preferably in writing) is one example of direct evidence.  

In reality, corporations carry out their unlawful motives in a passive aggressive manner to evade accountability.  Most, if not all, disability discrimination cases are proven via circumstantial evidence. Accordingly, you should maintain a journal/record of suspect discriminatory treatment.  You can use your personal devices such as your cell phone or computer to take notes or send e-mails to yourself – whatever works best for you.  Below are some examples of events/incidents you need to take note of: 

• You are harassed because of your disability:  For example, in Caldera v. Department of Corrections, employer frequently mocked and humiliated plaintiff because of his speech impediment.  In that case, the Court clarified that “isolated” or “occasional” offensive incidents are insufficient to state a claim of harassment under the law.  The plaintiff was subject to severe or pervasive harassment on a continuous basis. Among other examples, a supervisor made an announcement to over 50 employees over the loudspeaker while mimicking plaintiff’s stutter.  Caldera v. Department of Corrections

• Your employer declines your reasonable requests for a medical accommodation:  Once a Company is aware of your disability, it must accommodate your disability, engage in an interactive process, and prevent disability discrimination.  Failure to do the foregoing will give rise to additional claims and may also evidence disability discrimination.  

Although you are not entitled to the exact accommodation you desire, the alternative accommodation proposed by your employer must be similarly effective and reasonable.  Your employer generally cannot pressure you to accept unacceptable accommodations or force you to take medical leave instead of allowing you to continue working so long as you can perform the essential functions of your job with an accommodation.   

• You are treated worse than non-disabled co-workers:   How are you treated after your employer learns of your disability? Timing is key! Has your employer lost confidence in you?  Pay attention if you are treated worse or if your advancement comes to a halt after your employer learns of your disability.  

Document whether your assignments or job duties are taken away and/or reassigned to co-workers.  You should also document any other changes to your terms and conditions of employment. Are you excluded from management meetings?  Is your employer denying you requests for resources or support that is available to your co-workers? These adverse actions may be signs of disability discrimination.  

• You are reprimanded because of your disability:  For example, your employer generally cannot reprimand you for excessive absences if those absences are due to your need to seek treatment.   

• Your employer is aware of ongoing disability discrimination and does nothing about it:  This is perhaps among the most telling evidence of disability discrimination.  If you followed internal grievance procedures and/or submitted a written complaint of disability discrimination to HR or your supervisor, your employer must take preventative action including but not limited to a fair investigation and appropriate remedial measures.  If your employer fails to take proper measures, then your employer may be condoning unlawful disability discrimination. 

Keep in mind, these are select examples that may be telling of disability discrimination.  For more information, you should seek advice from attorney specializing in disability discrimination.