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					           DISABILITY DISCRIMINATION IN THE WORKPLACE
                                   State Versus Federal Law Protections
TERM                       FEHA, as amended                             ADA                                         DIFFERENCE

EMPLOYER                   Any person regularly employing five or       A person engaged in an industry             The FEHA continues to cover smaller
                           more persons, except a religious             affecting commerce who has 15 or            employers that are not covered by the
                           association or corporation not               more employees. 42 U.S.C. §                 ADA. However, some religious
                           organized for private profit. Despite        12111(4).                                   entities are covered by the ADA that
                           religious exclusion, employer includes                                                   are not covered by the FEHA.
                           health care facility operated by religious
                           entity (except for employees
                           performing religious duties). Cal.
                           Gov’t Code §§ 12926(d), 12926.2(c).

PHYSICAL OR MENTAL         “Mental disability” includes, but is         The term “disability” means, with           The 2000 amendments to the FEHA
DISABILITY                 not limited to, all of the following (1)     respect to an individual – (A) a physical   (AB 2222) confirm that a broad range
                           Having any mental or psychological           or mental impairment that substantially     of impaired workers are protected by
                           disorder or condition, such as mental        limits one or more of the major life        state law, including impairments that
                           retardation, organic brain syndrome,         activities of such individual; (B) a        the courts have held are not covered
                           emotional or mental illness, or specific     record of such an impairment; or (C)        under the ADA’s definition. The state
                           learning disabilities, that limits a major   being regarded as having such an            definitions includes five “prongs,”
                           life activity. (2) Any other mental or       impairment. 42 U.S.C. § 12102(2).           while the federal definition has three.
                           psychological disorder or condition not
                           described in paragraph (1) that requires
                           special education or related services. (3)
                           Having a record or history of a mental
                           or psychological disorder or condition
                           described in paragraph (1) or (2), which
                           is known to the employer or other
                           entity covered by this part. (4) Being
                           regarded or treated by the employer or
                           other entity covered by this part as
                           having, or having had, any mental
                           condition that makes achievement of a
                           major life activity difficult. (5) Being
                           regarded or treated by the employer or
                           other entity covered by this part as
                           having, or having had, a mental or
                           psychological disorder or condition
                           that has no present disabling effect, but
                           that may become a mental disability as


600 HARRISON STREET SUITE 120
SAN FRANCISCO, CALIFORNIA 94107
TEL: 415 864 8848   WWW.LAS-ELC.ORG
           DISABILITY DISCRIMINATION IN THE WORKPLACE
                                  State Versus Federal Law Protections
TERM                       FEHA, as amended                            ADA   DIFFERENCE

                           described in paragraph (1) or (2). Cal.
                           Gov’t Code § 12926(i).

                           “Physical disability” includes, but is
                           not limited to, all of the following: (1)
                           Having any physiological disease,
                           disorder, condition, cosmetic
                           disfigurement, or anatomical loss that
                           does both of the following: (A)
                           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,
                           skin, and endocrine. (B) Limits a major
                           life activity. (2) Any other health
                           impairment not described in paragraph
                           (1) that requires special education or
                           related services. (3) Having a record or
                           history of a disease, disorder,
                           condition, cosmetic disfigurement,
                           anatomical loss, or health impairment
                           described in paragraph (1) or (2), which
                           is known to the employer or other
                           entity covered by this part. (4) Being
                           regarded or treated by the employer or
                           other entity covered by this part as
                           having, or having had, any physical
                           condition that makes achievement of a
                           major life activity difficult. (5) Being
                           regarded or treated by the employer or
                           other entity covered by this part as
                           having, or having had, a disease,
                           disorder, condition, cosmetic
                           disfigurement, anatomical loss, or


600 HARRISON STREET SUITE 120
SAN FRANCISCO, CALIFORNIA 94107
TEL: 415 864 8848   WWW.LAS-ELC.ORG
           DISABILITY DISCRIMINATION IN THE WORKPLACE
                                   State Versus Federal Law Protections
TERM                       FEHA, as amended                             ADA   DIFFERENCE

                           health impairment that has no present
                           disabling effect but may become a
                           physical disability as described in
                           paragraph (1) or (2). Cal. Gov’t Code
                           § 12926(k).

                           The law of this state contains broad
                           definitions of physical disability, mental
                           disability, and medical condition. 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. . . . Physical and
                           mental disabilities include, but are not
                           limited to, chronic or episodic
                           conditions such as HIV/AIDS,
                           hepatitis, epilepsy, seizure disorder,
                           diabetes, clinical depression, bipolar
                           disorder, multiple sclerosis, and heart
                           disease. Cal. Gov’t Code § 12926.1.




600 HARRISON STREET SUITE 120
SAN FRANCISCO, CALIFORNIA 94107
TEL: 415 864 8848   WWW.LAS-ELC.ORG
           DISABILITY DISCRIMINATION IN THE WORKPLACE
                                   State Versus Federal Law Protections
TERM                       FEHA, as amended                           ADA                                        DIFFERENCE

MEDICAL CONDITION          “Medical condition” includes any           Medical conditions are not separately      State law specifically protects
                           health impairment related to or            defined. In the ADA Title I                applicants and employees with certain
                           associated with a diagnosis of cancer or   Interpretive Guidance covering the         medical conditions from discrimination
                           a record or history of cancer. Also        second part of the definition of           who are not necessarily covered under
                           includes “genetic characteristics,”        disability – having a record of such an    federal law. Under state law, and as
                           defined as identifiable genes or           impairment – the EEOC uses former          amended by the 2000 legislative
                           chromosomes, or inherited                  cancer patients as an example of the       changes, persons with cancer or a
                           characteristics, which are associated      intent of this provision. Additionally,    cancer history are protected from
                           with a statistically increased risk of     according to the EEOC’s Policy             discrimination regardless of whether
                           development of a disease or disorder,      Guidance on Executive Order 13145: To      they are in remission or whether they
                           but which are not presently associated     Prohibit Discrimination in Federal         have any “limitation” of a major life
                           with any symptoms of any disease or        Employment Based on Genetic Information,   activity. Additionally, persons with
                           disorder. Cal. Gov’t Code § 12926(h).      persons who are discriminated against      genetic traits have been covered under
                                                                      on the basis of their genetic traits may   the “medical condition” provision
                                                                      have a claim under the Rehabilitation      since 1998 (but not if they already have
                                                                      Act.                                       symptoms of the disorder).

MAJOR LIFE ACTIVITIES       “Major life activities” shall be          Functions such as caring for oneself,      The 2000 amendments to the FEHA
                           broadly construed and shall include        performing manual tasks, walking,          confirm that a broad range of major
                           physical, mental, and social activities    seeing, hearing, speaking, breathing,      life activities must be considered in
                           and working. Cal. Gov’t Code §§            learning, and working. 29 C.F.R. §         determining whether an individual is
                           12926(i)(1)(C), (k)(1)(B)(iii).            1630.2(i).                                 protected from disability
                                                                                                                 discrimination.
                                                                      A recent Supreme Court case, Toyota v.
                                                                      Williams, 534 U.S. 184 (2002), limited
                                                                      the major life activity of “performing
                                                                      manual tasks” to those tasks that are of
                                                                      “central importance to most people’s
                                                                      daily lives.”

WORKING AS A MAJOR LIFE    Under the law of this state, “working”     Substantially limited in the major life    The 2000 amendments confirm that
ACTIVITY                   is a major life activity, regardless of    activity or working means significantly    state law provides legal protection for
                           whether the actual or perceived            restricted in the ability to perform       workers who are unable, or who are
                           working limitation implicates a            either a class of jobs or a broad range    perceived as unable, to perform a
                           particular employment or a class or        of jobs in various classes as compared     single job. This protection is
                           broad range of employments. Cal.           to the average person having               particularly important for “regarded as”


600 HARRISON STREET SUITE 120
SAN FRANCISCO, CALIFORNIA 94107
TEL: 415 864 8848   WWW.LAS-ELC.ORG
           DISABILITY DISCRIMINATION IN THE WORKPLACE
                                  State Versus Federal Law Protections
TERM                       FEHA, as amended                           ADA                                           DIFFERENCE

                           Gov’t Code § 12926.1.                      comparable training, skills, and abilities.   failure-to-hire cases. Under federal
                                                                      The inability to perform a single,            law, an applicant who is denied a job
                                                                      particular job does not constitute a          based on a physical or mental
                                                                      substantial limitation in the major life      impairment must prove that the
                                                                      activity of working. 29 C.F.R. §              employer viewed them as being
                                                                      1630.2(j)(3)(1).                              substantially limited in a broad class of
                                                                                                                    jobs. This is often impossible. Under
                                                                                                                    state law, the applicant is protected
                                                                                                                    against disability discrimination if they
                                                                                                                    can show that the employer regarded
                                                                                                                    them as unable to perform a particular
                                                                                                                    employment.

MITIGATING MEASURES        “Limits” shall be determined without       Mitigating measures are not separately        The 2000 amendments intentionally
                           regard to mitigating measures such as      defined in the ADA. Although the              deviate from the way the Supreme
                           medications, assistive devices,            EEOC’s guidance originally stated that        Court by specifically excluding
                           prosthetics, or reasonable                 the existence of a disability is to be        consideration of mitigating measures.
                           accommodations, unless the mitigating      determined without regard to                  This analysis is consistent with the
                           measure itself limits a major life         mitigating measures, the Supreme              1982 California Supreme Court case
                           activity. Cal. Gov’t Code §§               Court disagreed. According to the             American National Insurance.
                           12926(i)(1)(A), (k)(1)(B)(i).              Supreme Court in three 1999 cases
                                                                      often referred to as the Sutton trilogy, a
                           Under the law of this state, whether a     “disability” exists only where an
                           condition limits a major life activity     impairment “substantially limits” a
                           shall be determined without respect to     major life activity despite mitigating
                           any mitigating measures, unless the        measures – it is not enough to show
                           mitigating measure itself limits a major   that the impairment would be
                           life activity, regardless of federal law   substantially limiting if mitigating
                           under the Americans with Disabilities      measures were not taken. The EEOC
                           Act of 1990. Cal. Gov’t Code §             was forced to change its guidelines to
                           12926.1.                                   conform to the Supreme Court’s
                                                                      analysis. See Sutton v. United Air Lines,
                                                                      527 U.S. 471 (1992).




600 HARRISON STREET SUITE 120
SAN FRANCISCO, CALIFORNIA 94107
TEL: 415 864 8848   WWW.LAS-ELC.ORG
           DISABILITY DISCRIMINATION IN THE WORKPLACE
                                  State Versus Federal Law Protections
EXPRESS EXCLUSIONS FROM    “Mental disability”/“Physical             The term “disabled” or “disability”          According to most mental health
DEFINITION                 disability” does not include sexual       shall not apply to an individual solely      professionals, a “gender identity
                           behavior disorders, compulsive            because that individual is a transvestite.   disorder” or transsexualism is not a
                           gambling, kleptomania, pyromania, or      42 U.S.C. § 12208. The term                  “sexual behavior disorder.” For this
                           psychoactive substance use disorders      “individual with a disability” does not      reason, persons who are transgendered
                           resulting from the current unlawful use   include an individual who is currently       may be able to demonstrate that they
                           of controlled substances or other         engaging in the illegal use of drugs, but    are “disabled” under state law, and thus
                           drugs. Cal Gov’t Code §§ 12926(i),        may include an individual who is             protected from discrimination.
                           (k).                                      participating or who has successfully
                                                                     completed a supervised drug
                                                                     rehabilitation program and is no longer
                                                                     engaging in the illegal use of drugs, or
                                                                     who has otherwise been rehabilitated
                                                                     successfully and is no longer engaging
                                                                     in such use, or who is incorrectly
                                                                     regarded as engaging in illegal drug use.
                                                                     42 U.S.C. §§ 12210(a), (b). For
                                                                     purposes of the definition of
                                                                     “disability,” homosexuality and
                                                                     bisexuality are not impairments and as
                                                                     such are not disabilities under this Act.
                                                                     The term “disability” shall not include
                                                                     transvestism, transsexualism,
                                                                     pedophilia, exhibitionism, voyeurism,
                                                                     gender identity disorders not resulting
                                                                     from physical impairments, or other
                                                                     sexual behavior disorders; compulsive
                                                                     gambling, kleptomania, or pyromania;
                                                                     or psychoactive substance use
                                                                     disorders resulting from current illegal
                                                                     use of drugs. 42 U.S.C. § 12211.




600 HARRISON STREET SUITE 120
SAN FRANCISCO, CALIFORNIA 94107
TEL: 415 864 8848   WWW.LAS-ELC.ORG
           DISABILITY DISCRIMINATION IN THE WORKPLACE
                                  State Versus Federal Law Protections
INTERACTIVE PROCESS        It is an unlawful employment practice       According to the EEOC, to determine         The state law and federal agency
                           for an employer or other entity covered     the appropriate reasonable                  provisions regarding the interactive
                           by the act to fail to engage in a timely,   accommodation it may be necessary           accommodation process are consistent
                           good faith, interactive process with the    for the covered entity to initiate an       with one another. Under the state
                           employee or applicant to determine          informal, interactive process with the      statute, a failure to engage in the
                           effective reasonable accommodation, if      qualified individual with a disability in   interactive accommodation process is a
                           any, in response to a request for           need of the accommodation. 29               separate violation of law. Under case
                           reasonable accommodation by an              C.F.R. § 1630.2(o)(3).                      law interpreting the federal statute, a
                           employee or applicant with a known                                                      failure to engage is considered
                           physical or mental disability or known                                                  substantial evidence of an unlawful
                           medical condition. Cal. Gov’t Code §                                                    failure to accommodate, but is not
                           12940(m).                                                                               considered a separate violation.




600 HARRISON STREET SUITE 120
SAN FRANCISCO, CALIFORNIA 94107
TEL: 415 864 8848   WWW.LAS-ELC.ORG
           DISABILITY DISCRIMINATION IN THE WORKPLACE
                                  State Versus Federal Law Protections
MEDICAL EXAMINATIONS       Pre-employment/application phase:           Pre-employment/application phase:            The state and federal provisions
AND INQUIRIES              Unlawful for employer to make any           Unlawful for employer to conduct a           similarly prohibit employers from
                           non-job-related inquiry that expresses      medical examination or make inquiries        making medical inquiries of job
                           any limitation, specification or            of a job applicant as to whether such        applicants. Further, both state and
                           discrimination as to disability.            applicant is an individual with a            federal law require that medical
                           Unlawful to require any medical or          disability or as to the nature or severity   inquiries made of current employees
                           psychological examination of an             of such disability. 42 U.S.C. §              must be job-related and consistent with
                           applicant, to make any medical or           12112(d)(2).                                 business necessity. However, the 2000
                           psychological inquiry of an applicant,                                                   amendments clarify that there are
                           to make any inquiry whether an              Post-offer, pre-employment phase:            significant distinctions between state
                           applicant has a mental disability or        Employer may require a medical               and federal law. First, post-offer, pre-
                           physical disability or medical condition,   examination, also called an                  employment medical examinations –
                           or to make any inquiry regarding the        employment entrance examination, and         also called employee entrance
                           nature or severity of a physical            may condition an offer of employment         examinations – are prohibited under
                           disability, mental disability, or medical   on the examination’s results, if all         state law unless they are job-related and
                           condition. Lawful to inquire into the       entering employees are subjected to          consistent with business necessity.
                           ability of an applicant to perform job-     such an examination, and information         Federal law, by contrast, specifically
                           related functions. Lawful to respond        is confidentially maintained. 42 U.S.C.      permits such examinations, even if they
                           to an applicant's request for reasonable    § 12112(d)(3).                               are not job related and necessary.
                           accommodation. Cal. Gov’t Code §§                                                        Second, state law regulates
                           12940(e)(1), (2).                           On the job: Unlawful to require              psychological examinations and
                                                                       medical examination or make inquiries        inquiries, in addition to medical
                           Post-offer, pre-employment phase:           of an employee as to whether such            examinations and inquiries. Under
                           Medical or psychological examination        employee is an individual with a             federal law, certain psychological
                           or medical or psychological inquiry         disability or as to the nature or severity   examinations have been found not to
                           must be job-related and consistent with     of the disability, unless such               be covered because they are not
                           business necessity, and all entering        examination or inquiry is shown to be        considered “medical.”
                           employees in the same job                   job-related and consistent with
                           classification must be subject to the       business necessity. 42 U.S.C. §
                           same examination or inquiry. Cal.           12112(d)(4)(A).
                           Gov’t Code § 12940(e)(3).




600 HARRISON STREET SUITE 120
SAN FRANCISCO, CALIFORNIA 94107
TEL: 415 864 8848   WWW.LAS-ELC.ORG
           DISABILITY DISCRIMINATION IN THE WORKPLACE
                                   State Versus Federal Law Protections
                           On the job: Unlawful to require
                           medical or psychological examination
                           or medical or psychological inquiry
                           unless examination or inquiry is job-
                           related and consistent with business
                           necessity. Voluntary examinations that
                           are part of an employee health program
                           are lawful. Cal. Gov’t Code §
                           12940(f).

DAMAGES                    In private lawsuits there is no limit on   There is a $300,000 limit on             Injured parties may seek full
                           the amount of emotional distress           compensatory and punitive damages.       compensation for their injuries for
                           damages and unlimited punitive             42 U.S.C. §§ 1981a(a)(2), (a)(3), (b).   disability discrimination under state
                           damages may be awarded.                                                             law.




600 HARRISON STREET SUITE 120
SAN FRANCISCO, CALIFORNIA 94107
TEL: 415 864 8848   WWW.LAS-ELC.ORG