The FEHA Provides Broader Coverage Than The ADA In California

The Americans with Disabilities Act (ADA) and California's Fair Employment and Housing Act (FEHA) are both designed to prevent discrimination by employers against disabled individuals.

While these laws are similar in many ways, they embody important differences. The California law is broader in its scope, and allows greater coverage for the disabled.

The Americans with Disabilities Act (ADA)

The Americans with Disabilities Act of 1990 prohibits private employers, state and local governments, employment agencies and labor unions from discriminating against qualified individuals with disabilities in job application procedures, hiring, firing, advancement, compensation, job training, and other terms, conditions, and privileges of employment.

The ADA applies to employers with 15 or more employees, including state and local governments.

Who is Disabled?

Under the ADA, an individual is considered to be disabled if he or she:

  • 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 impairment

Who is a Qualified Employee or Applicant?

An individual is considered to be a qualified employee or applicant if he or she, with or without reasonable accommodation, can perform the essential functions of the job in question. Reasonable accommodations may include, but are not limited to:

  • Making existing facilities readily accessible to and usable by persons with disabilities
  • Restructuring duties, modifying work schedules, reassigning employees to alternative positions
  • Acquiring or modifying equipment or devices, adjusting or modifying examinations, training materials, or policies, and providing qualified readers or interpreters

Reasonable Accommodation

An employer is required to make a reasonable accommodation for the known disability of a qualified applicant or employee if it would not impose an "undue hardship" on the operation of the employer's business.

The Fair Employment and Housing Act (FEHA)

The Fair Employment and Housing Act (FEHA) protects the right of individuals to seek, obtain and hold employment without discrimination on the basis of physical or mental disability or medical condition in California. The definition of "disability" under the FEHA includes both physical and mental disabilities.

Physical disability

The definition of physical disability encompasses any physiological disease, disorder, condition, cosmetic disfigurement or anatomical loss, having a record of such impairment, or being regarding as having or having had such an impairment, that:

  • Affects one or more body systems (neurological, immunological, musculoskeletal, special sense organs, respiratory, speech organs, cardiovascular, reproductive, digestive, genitourinary, hemic, lymphatic, skin and endocrine); and
  • Limits a major life activity without regard to mitigating measures, such as medications, assistive devices, prosthetics or reasonable accommodations; or
  • Any other health impairment that requires special education or related services.

Mental Disability

The definition of mental disability includes any mental or psychological disorder, such as mental retardation, organic brain syndrome, emotional or mental illness, and specific learning disabilities that limit a major life activity, or having a history of such impairment or being regarded as having or having had such an impairment.

Mental disability includes any mental or psychological disorder or condition that requires special education or related services. Mental disability does not include sexual behavior disorders, compulsive gambling, kleptomania, pyromania or current unlawful drug use.

Medical Condition

The FEHA also prohibits discrimination in employment on the basis of medical condition. "Medical condition" means:

  • Any health impairment related to or associated with a diagnosis of cancer or a record or history of cancer; or
  • Genetic characteristics

Covered Employers

California employment discrimination law covers nearly all employers. An "employer" for purposes of the FEHA includes anyone regularly employing five or more persons, whether full or part-time; any person acting as an agent of an employer, directly or indirectly; state and local governments; employment agencies; and labor organizations. Employers must make reasonable accommodations for applicants and employees with disabilities, unless the accommodation would impose an undue hardship on the employer.

Greater Protection in California

The FEHA was amended 2000 to make explicit that while the ADA provides "a floor of protection," it was designed to provide wider protection. The legislature has stated that California's law has always afforded greater protection that guaranteed by the ADA.

In federal court, the interpretation of "substantial limitation" has been used to substantially limit the application of the ADA. California statute uses "a limitation," rather than "a substantial limitation," to indicate that the legislature intends to provide broader coverage under California law than is available under the ADA.

The legislature has also amended the statue to instruct courts not to follow some of the limiting interpretations by the United States Supreme Court of the ADA when interpreting the FEHA.

Importance of Experienced Counsel

Both the ADA and FEHA are complex statutes. Litigation under these statutes requires a sophisticated understanding of these statutes, how they interrelate with each other and other anti-discrimination laws and other statutory schemes, like workers compensation.

It also requires a strong understanding of agency regulatory schemes, practice and procedure and case law as it interacts with the statutes, regulations and precedent. As a result, if you believe that you or a loved one has been discriminated against due to disability, contact an experienced employment law attorney familiar with the complexities of this area of law.