Docstoc

Discrimination Laws

Document Sample
Discrimination Laws Powered By Docstoc
					  Medical Accommodations
   Disability discrimination

                   PROHIBITING
                   DISABILITY
                   DISCRIMINATION
                   IN EMPLOYMENT
 UPE, Local #1
Stewards Council
  August 2005
Disability Discrimination Laws

   Two primary laws on disability discrimination
    in employment

   ADA - Americans with Disability Act Federal

   FEHA- Fair Employment and Housing Act
    State of California
THE ADA
What is the ADA


 The Americans with Disabilities Act is a
  federal law that was enacted in 1990
 It now applies to all employers with 15+
  employees
 Title I and V relate to employment
  issues
PURPOSE OF THE ADA

 (1) to provide a clear and comprehensive national
   mandate for the elimination of discrimination against
   individuals with disabilities;
(2) to provide clear, strong, consistent, enforceable
   standards addressing discrimination against individuals
   with disabilities;
(3) to ensure that the Federal Government plays a central
   role in enforcing the standards established in this
   chapter on behalf of individuals with disabilities; and
(4) to invoke the sweep of congressional authority,
   including the power to enforce the fourteenth
   amendment and to regulate commerce, in order to
   address the major areas of discrimination faced
   day-to-day by people with disabilities.
ADA: It is illegal to discriminate in any
aspect of employment, including:


   Hiring and firing
   Compensation, assignment, or classification
   Transfer, promotion, layoff or recall
   Job advertisements
   Testing
   Use of company facilities
   Training
   Fringe benefits
   Pay, Retirement plans, and disability leave
   Other term and conditions of employment
It is illegal to discriminate because an
employee complains of discrimination



 Filing a charge of discrimination
 Participating in an investigation
 Opposing discriminatory practices.
   ADA
DEFINITIONS
“Individual with a disability”

An individual with a disability under the ADA is:
a person who has a physical or mental
  impairment that substantially limits one or
  more major life activities,
has a record of such an impairment,
or is regarded as having such an impairment.
Major Life Activities

   activities that an average person can perform
    with little or no difficulty such as walking,
    breathing, seeing, hearing, speaking,
    learning, and working.
Supreme Court Rulings

   US Supreme Court rulings have had a major
    impact on ADA
   Sutton, Murphy, and Barnett
   3 recent US Supreme Court Rulings on ADA
    have effected definition of “disability”
    “hardship” and “reasonable accommodation
    US Supreme Court Rulings

   Supreme Court has ruled that the determination of
    whether a person has an ADA "disability" must take
    into consideration whether the person is substantially
    limited in performing a major life activity when using
    a mitigating measure.

   This means that if a person has little or no difficulty
    performing any major life activity because s/he uses
    a mitigating measure, then that person will not meet
    the ADA's first definition of "disability."
“Qualified Individual with a Disability”

    A qualified employee or applicant with a disability
    is someone who satisfies skill, experience,
    education, and other job-related requirements of
    the position held or desired, and who, with or
    without reasonable accommodation, can perform
    the essential functions of that position.
“Reasonable Accommodation”

 Reasonable accommodation may include, but
is not limited to, making existing facilities used
by employees readily accessible to and usable
by persons with disabilities; job restructuring;
 modification of work schedules; providing
additional unpaid leave; reassignment to a
vacant position; acquiring or modifying
equipment or devices; adjusting or modifying
examinations, training materials, or policies;
and providing qualified readers or interpreters.
When is an accommodation needed?

  Reasonable accommodation may be
   necessary to:
  apply for a job
  perform job functions, or
  enjoy the benefits and privileges of
   employment that are enjoyed by people
   without disabilities.
Production standards

  An employer is not required to lower
   production standards to make an
   accommodation.
“Undue hardship”

   An employer is required to make a
    reasonable accommodation to a qualified
    individual with a disability unless doing so
    would impose an undue hardship on the
    operation of the employer's business.
Undue hardship on the employer

   Undue hardship means an action that
    requires significant difficulty or expense
    when considered in relation to factors such
    as a business' size, financial resources, and
    the nature and structure of its operation.
Personal Use Items

  An employer generally is not
   obligated to provide personal use
   items such as eyeglasses or
   hearing aids.
  Exception may exist for items such
   as glasses used only for
   computers
“Prohibited Inquiries and
Examinations”

  –   Before making an offer of employment, an
      employer may not ask job applicants about the
      existence, nature, or severity of a disability.
  –   Applicants may be asked about their ability to
      perform job functions.
  –   A job offer may be conditioned on the results of a
      medical examination, but only if the examination
      is required for all entering employees in the same
      job category.
  –   Medical examinations of employees must be job-
      related and consistent with business necessity.
DRUG AND ALCOHOL USE
   Employees and applicants currently engaging in the
    illegal use of drugs are not protected by the ADA
    when an employer acts on the basis of such use.
   Tests for illegal use of drugs are not considered
    medical examinations and, therefore, are not subject
    to the ADA's restrictions on medical examinations.
   Employers may hold individuals who are illegally
    using drugs and individuals with alcoholism to the
    same standards of performance as other employees.
Oakland EEOC office has jurisdiction over
Sacramento County in enforcing ADA
complaints


   1301 Clay Street Suite 1170-N
    Oakland, CA 94612-5217
   Phone:510-637-3230 Fax:510-637-
    3235TTY:510-637-3234
   Director:Joyce Hendy
   Office Hours: Monday - Friday from 8:00 a.m.
    - 4:30 p.m. Please call first to obtain
    information or schedule an appointment.
FEHA



 Fair Employment and
 Housing Act
What is the FEHA?

   Fair Employment and Housing Act first
    passed in 1974
   Enforced by California DFEH
   Broader in scope than ADA
California Law
prohibits discrimination

   In general, California law prohibits discrimination against
    people with disabilities. An employer who discriminates against
    a person because of his/her disability may do so only if the
    employer can demonstrate that:
   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
   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.
FEHA requires 2
things of employers


    Employers must provide reasonable
    accommodation for those applicants and employees
    who, because of their disability, are unable to
    perform the essential functions of their job.
    Employers must engage in a timely, good faith
    interactive process with applicants or employees in
    need of reasonable accommodation.
Reasons NOT to discriminate

   The following two reasons are not legally
    acceptable excuses for discrimination:
   There is a possibility of future harm to the
    person or to others
   That employing individuals with a disability
    will cause an employer's insurance rates to
    rise
PURPOSE OF FEHA

   The FEHA prohibits harassment and discrimination in
    employment
   because of race, color, religion, sex (gender), sexual
    orientation,
   marital status, national origin (including language use
    restrictions),
   ancestry,
   disability (mental and physical, including HIV and AIDS),
    medical condition (cancer/genetic characteristics), age (40 and
    above), pregnancy, denial of medical and family care leave,
   or pregnancy disability leave (Government Code sections
    12940,12945, 12945.2).
FEHA DEFINITIONS
“Physical Disability”

   Having any physiological disease, disorder,
    condition, cosmetic disfigurement, or anatomical loss
    that affects one or more of several body systems and
    limits a major life activity.
   A physiological disease, disorder, condition,
    cosmetic disfigurement, or anatomical loss limits a
    major life activity, such as working, if it makes the
    achievement of the major life activity difficult.
   Physical disability also includes a any other health
    impairment that requires special education or related
    services;
History or record of a
physiological conditions

   having a record or history of a disease,
    disorder, condition, cosmetic disfigurement,
    anatomical loss, or health impairment which
    is known to the employer;
   and being perceived or treated by the
    employer as having any of the
    aforementioned conditions.
“Body Systems”

   The body systems listed in FEHA include the
    following:
   Neurological immunological,
    musculoskeletal, special sense organs,
    respiratory, including speech organs,
    cardiovascular, reproductive, digestive,
    genitourinary, hemic and lymphatic, skin and
    endocrine systems.
“Mental Disability”

   Having any mental or psychological disorder
    or condition, such as:
   mental retardation, organic brain syndrome,
    emotional or mental illness, or specific
   learning disabilities, that limits a major life
    activity, or having any other mental or
   psychological disorder or condition that
    requires special education or related
    services.
“Medical Condition”

   Any health impairment related to or associated with a diagnosis
    of cancer or a record or history of cancer, or a genetic
    characteristic.
   A “genetic characteristic” can be a scientifically or medically
    identifiable gene or chromosome or an inherited characteristic
    that could statistically lead to increased development of a
    disease or disorder.
   For example, women who carry a gene established to
    statistically lead to breast cancer are protected under state law.
   Keep in mind, however, that Government Code section
    12940(o) makes it an unlawful employment practice for an
    employer to subject, directly or indirectly, any applicant or
    employee, to a test for the presence of a genetic characteristic.
History or Record of disorder

   An employee who has a record or history of
    a mental or psychological disorder or
    condition which is:
   known to the employer,
   or who is regarded or treated by the
    employer as having a mental disorder or
    condition, is also protected.
Excluded disorders

   It should be noted that under both physical and
    mental disability the following disorders are
    specifically excluded and are not protected under the
    FEHA:
   sexual behavior disorders,
   compulsive gambling,
   kleptomania,
   pyromania,
   psychoactive substance use disorders resulting from
    the current unlawful use of controlled substances or
    other drugs
“Limits life activity”

   A physiological disease, disorder, condition,
    cosmetic disfigurement, or anatomical loss
    limits a major life activity, such as working, if
    it makes the achievement of the major life
    activity difficult.
How to File

   Must be filed within 1 year of the act of
    discrimination
   Use form provided by state
   DFEH investigates (representing the state)
   If DFEH finds evidence of discrimination the
    can file a complaint, file in court, or issue a
    right to sue letter
Mitigating the disability

   When determining whether a person has a disability,
    an employer cannot take into consideration
   any medication or assistive device, such as
    wheelchairs, eyeglasses or hearing aids, that an
    employee may use to accommodate the disability.
   However, if these devices or mitigating measures
    “limit a major life activity”, they should be taken into
    consideration.
REASONABLE ACCOMMODATION

   any appropriate measure that would allow the applicant or
    employee with a disability to perform the essential functions of
    the job.
   It can include making facilities accessible to individuals with
    disabilities or restructuring jobs, modifying work schedules,
    buying or modifying equipment, modifying examinations and
    policies, or other accommodations.
   For example, providing a keyboard rest for a person with carpal
    tunnel syndrome may qualify as a reasonable accommodation.
    A person with asthma may require that the lawn care be
    rescheduled for a non-business day.
Medical Records
   In determining a disability, an employer may only request
    medical records directly
   related to the disability and need for accommodation. However,
    an applicant or an
   employee may submit a report from an independent medical
    examination before
   disqualification from employment occurs. The report must be
    kept separately and
   confidentially as any other medical records, except when a
    supervisor or manager
   needs to be informed of restrictions for accommodation
    purposes or for safety reasons
   when emergency treatment might be required.
REMEDIES AVAILABLE UNDER FEHA

   Under the Fair Employment and Housing Act, if an employer
    fails to reasonably accommodate an applicant or employee, the
    Fair Employment and Housing Commission can
    order the employer to cease and desist the discriminatory
    practice;
    hire or reinstate;
    award actual damages including, but not limited to, lost wages;
   emotional distress damages; and administrative fines not to
    exceed $150,000.00.
   If the matter is heard in civil court, the damages would be
    unlimited.
Sacramento County
                                                            700 H Street, 5th Floor
                                                            Sacramento, CA 95814
Disability Compliance Office                                (916) 874-4466 Voice
                                                            (916) 874-7647



   The Rehabilitation Act of 1973 requires federal funding recipients (such as local
    governments) to make their programs and services accessible to people with
    disabilities. In 1990, the Americans with Disabilities Act (ADA) was signed into
    law. Title II is the part of the ADA which applies to state and local governments
    and contains the same basic prohibition on discrimination based on disability
    found in Section 504 of the Rehabilitation Act.
   Additionally, in California, there are a number of laws that provide further
    protection for people with disabilities. The Fair Employment and Housing Act
    (FEHA) (Gov. Code, § 12900 et seq.) is the state‟s primary law prohibiting
    discrimination in employment, housing and public accommodation. California
    Code of Regulations (CCR) Title 24, also known as the California Building
    Standards Code, addresses architectural barriers that limit access for people
    with disabilities in places of public accommodation.
   The Sacramento County Disability Compliance Program is responsible for
    overseeing the implementation and enforcement of these federal and state laws
    and regulations that protect the civil rights of persons with disabilities. The
    Disability Compliance Office assists county departments in making all aspects
    of their programs and services accessible to people with disabilities.
Compliance Office – services for
county employees

   The Disability Compliance Office‟s primary function is to support county
    departments and their employees. It does offer some limited information and
    referral services to the community at large. It is also responsible for providing
    technical assistance and staff support to a community advisory group, the
    Sacramento County Disability Advisory Committee to the Board of Supervisors,
    representing the disability community.
   ·      Coordinate reasonable accommodations for all county employees and job
    applicants with disabilities as defined by the Americans with Disabilities Act (ADA)
    and the California Fair Employment and Housing Act (FEHA). A reasonable
    accommodation is a logical adjustment made to a job and/or the environment that
    enables an otherwise qualified person with a disability to perform the essential
    functions of their positions.
   ·      Provide information and technical assistance to all county agencies and
    departments to assist them in designing and implementing programs, policies and
    procedures that will bring the county into compliance with the ADA, California Code
    of Regulations Title 24 and other federal and state laws that pertain to disability
    access.
   ·      Train county employees on their rights and responsibilities under the
    ADA/FEHA, and provide information on disability sensitivity and inclusive workplace
    strategies.
Disability Advisory Committee
   The DAC meets the 1st Tuesday of the month, 5:30-7:30 p.m. in Hearing
    Rm. 1, County Administration Center, 700 H Street. The Disability Advisory
    Committee (DAC) advises the Sacramento County Board of Supervisors on
    issues pertaining to the disability community and County compliance with
    Federal and State laws and regulations. The 17 members are appointed by the
    Board and are drawn from organizations serving people with disabilities, or
    from the general public who have an interest in and knowledge of disability
    issues. At least half of the 13 voting members must be persons with a disability.
    Four members are non-voting County Department Directors.
   DAC RESPONSIBILITIES INCLUDE:
   Evaluating accessibility of County facilities, employment, and services
   Making recommendations for appropriate actions to improve accessibility
   Acting as a liaison with community groups, government agencies, and
    individuals in addressing disability issues related to Sacramento County
   Presenting educational public forums on disability issues
Other accommodations

   Sacramento County and Sacramento
    Superior Court may grant accommodations
    to employees who do not meet the criteria of
    the ADA or FEHA.
   Employers must treated employees
    equitably with other similarly situated
    employees.
SUMMARY AND REVIEW
Is there a protected disability?
   Is the member qualified for the position or
    assignment?
   Is the member “substantially limited” (ADA) or
    “limited” (FEHA) in life activities?
   Is the member „limited” from work in a position
    (FEHA) or a broad classification (ADA)?
   Do they have a physical or mental disorder or
    disease?
   Do they have a protected „medical condition‟?
   Does the employer believe they have a disability?
The interactive process
   State law incorporates guidelines developed by the
    Equal Employment Opportunity
   Commission in defining an “interactive process”
    between the employer and the
   applicant or employee with a known disability.
   The guidelines include: consulting with the individual
    to ascertain the precise job-related
   limitations and how they could be overcome with a
    reasonable accommodation; and
   identifying potential accommodations and assessing
    their effectiveness.
Good Faith required


   Federal courts have provided an interpretation of
    “good faith,” essentially stating that an employer and
    employee must communicate directly with each
    other to determine essential information.
   Neither party can delay or interfere with the process.
   To demonstrate good-faith engagement in the
    interactive process, the employer should be able to
    point to cooperative behavior that promotes the
    identification of an appropriate accommodation.
Interactive Process defined

   State law incorporates guidelines developed by the
    Equal Employment Opportunity Commission in
    defining an “interactive process” between the
    employer and the applicant or employee with a
    known disability.
   The guidelines include: consulting with the individual
    to ascertain the precise job-related limitations and
    how they could be overcome with a reasonable
    accommodation; and
   identifying potential accommodations and assessing
    their effectiveness.
Essential functions of a job

   When determining whether a job function is
    essential, the following should be taken into
    consideration:
    the position exists to perform that function;
    there are a limited number of employees
    available to whom the job function can be
    distributed; or
   the function is highly specialized.
More factors in deciding if
a function is „essential.”
   Evidence of whether a particular function is “essential” includes:
    the employer‟s judgment as to which functions are essential;
   a written job description prepared before advertising or
    interviewing applicants for the job;
   the amount of time spent on the job performing the function;
   the consequences of not requiring the incumbent to perform the
    function;
   The terms of a collective bargaining agreement;
   the work experiences of past incumbents in the job;
   or the current work experience of incumbents in similar jobs.
    Major differences in ADA and FEHA

    FEHA (State)                                ADA (Federal)
    Disabled if „life activity (work) made      Disabled if “substantially limited” in
     difficult‟                                   major life activity
    Mitigating accommodations not               Mitigating accommodation
     considered in determining disability         considered in determining disability
     (unless the accommodation
     negatively impacts a life function)
    Employer cannot discriminate                Employer cannot discriminate
     because of a record OR history of a          because of a record of a disorder.
     disorder.
    Cancer or a genetic predisposition
     covered                                     Medical conditions not covered
    Can be considered disabled even if
     only for a single position                  Must be disabled from a broad
                                                  spectrum of classes
What are the steps

1.   Establish protected disability exists
2.   Determine the essential functions of the job
3.   Use good faith, interactive process
4.   Determine accommodation
5.   Provide accommodation
6.   Appeal promptly if denied
7.   Don‟t allow stalling by the employer
8.   Call the UPE office for assistance at any step
Enforcement


   You can file a grievance under the
    discrimination clause of the contracts.
   You can file a complaint with EEOC to
    enforce the ADA
   You can file a complaint with the DFEH to
    enforce the FEHA
   Some agencies can “cross file”
A last bit…
   Remember, the provisions of the FEHA are
    generally broader and cover more members.
   The employer has to comply with both ADA
    and FEHA at all times so they should be
    applying the rule that is most favorable to the
    member.
   Don‟t let the employer stall or intimidate!
   Thank you for taking the time to review this
    material.

				
DOCUMENT INFO
Description: Discrimination Laws document sample