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What is and what is not disability discrimination?

People with disabilities in California are accorded certain rights when seeking employment or if they are already employed. The Fair Employment and Housing Act (FEHA) precludes the employer from discriminating against a person because of their disability. However, it can be confusing as to what is considered disability discrimination and what is not. One factor that is important in this process is an independent medical examination to determine the extent of the disability. Understanding this in the context of the law is imperative when considering filing a case for workplace discrimination or employment discrimination based on disability.

When there is a disagreement as to whether a person who is suffering from a disability is capable of fulfilling the basic requirements of the job, the employer is required to allow the applicant or employee to have an independent medical examination.

When the employer is making a decision on employment, it will not be considered discrimination in the following circumstances: if the person cannot perform the basic and essential requirements of the job and there is no potential reasonable accommodation that would allow this to occur; and if the person’s presence would lead to imminent and substantial danger to that individual, or to others, by doing the job, and if there is no method to provide reasonable accommodations that could lower the risks. Employers will sometimes offer certain excuses as to why they cannot hire or retain a disabled person. The following are not sufficient: the potential of future damage coming to the person or others; and that giving the person a job or retaining the person can lead to an increase in insurance costs.

People in San Diego who are disabled have the right to work just like anyone else. Of course, there are a range of jobs that a person might or might not be able to do and the law has subsets to determine that. If there is a belief that discrimination at work is taking place, or a person was denied a job due to a disability, there could be a basis for a legal filing. Contacting an attorney experienced in disability discrimination can help with pursuing a case.

Source: dfeh.ca.gov, “Employment Discrimination Based on Disability — Independent Medical Opinion; Discrimination,” accessed on Sept. 6, 2016


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