Reasonable Accommodation and Disability Discrimination
Discrimination by non-governmental employers against physically or mentally disabled persons has only been illegal for less than 20 years. However, the area tends to be highly technical.
California’s Department of Fair Employment and Housing website might make appear that the issues are straightforward. Sometimes they are. The site states that an employer may only discriminate against person because of his or her disability if the employer can clearly demonstrate:
- “The person is unable to perform the essential functions of the job and that no reasonable accommodation exists that would enable the person to perform the essential functions of the job”; or
- “The person would create an imminent and substantial danger to himself/herself or a substantial danger to others by performing the job and that no reasonable accommodation can be made to remove or reduce the danger.”
Even a little research will show the potential complexity starts with the definitions of the key terms such as “disability,” “impairment,” “essential functions of the job,” “reasonable accommodation,” “undue hardship” and many others. There are literally thousands of published court decisions interpreting what these words and phrases mean as well as other multiple aspects of the applicable statutes and regulations.
We have published a number of articles on the subject seeking to simplify the subject. Please see, for example, Say “ADAAAAHHH” – More People to be Protected Under Federal Workplace Disability Law.
Bowles Law Report, Vol. 10, Issue 2; Pre-Employment Background Checks, Bowles Law Report, Vol. 9, Issue 3; and “Mental Disability” Laws Do Not Protect Incompetent Workers, Bowles Law Report, Vol. 1 Issue 3.
However, the area is sufficiently loaded with twists and turns that any manager faced with the hiring, discipline, termination, or other major employment decision regarding a disabled person (or even a possibly disabled person) should probably seek competent legal guidance for the task. If you have any questions about identifying and/or accommodating disabilities, please let us know.