Speaker 1: Everybody knows that it is illegal to terminate somebody because of their race or their religion. That's discrimination. In California, it is also unlawful to discriminate against somebody because of their disability, so long as they can perform the job. Unfortunately, disability discrimination has become one of the most common types of employment lawsuits in California. This video is going to describe exactly what disability discrimination is and what you can do to protect yourself. First, some basics. California Governmental Code, Section 12940, Subsection A and Subsection M describe California's disability discrimination law as we know it today. At its very basic level, it says two big things. First of all, you can't fire or discriminate in any way against a disabled worker if that person can perform the essential functions of the job. So, as long as they can do the job, you cannot discriminate against them because of their disability. Second, even if that disabled worker can't do the essential functions of the job, you still can't terminate them if they could have with a reasonable accommodation. Before we unpack those in more detail, we first need to establish what California employment law considers to be a disability. It defines three. Number one, physical disabilities. A physical disability is any physiological disease, disorder, condition, cosmetic disfigurement, or anatomical loss that affects body systems and, and this is important, limits a major life activity. We'll talk more about that in a minute. Now, that's a fancy lawyer definition. How about some examples? Chronic kidney disease, broken bones, torn ligaments, back problems, you know, sometimes heart disease and epilepsy, polio. Those are all good examples of a physical disability. The list is endless. And this is the largest area of disability discrimination law. Number two, mental disabilities. Any mental disorders, psychological disorders, things like OCD, schizophrenia, certain autism spectrum disorders, any of those could be a mental disability. Number three, medical conditions. The law largely puts us into two buckets. Cancer and related illnesses and genetic characteristics. So, that's all pretty simple. And those cases are relatively rare. If you notice, I have these brackets. Any one of these must limit a major life activity. Okay, what does that mean? Well, lucky for us, California case law has defined a major life activity to include work. Obviously, working is a big part of anybody's life. So, that's not too difficult to establish. What is sometimes more in controversy is whether or not your medical condition actually constitutes a disability under one of those three definitions. Remember back here when I said that California employment law holds that it is unlawful to discriminate or terminate an employee because they have a disability if that person can perform the essential functions of the job. That's pretty simple. The person can do the job. You can't discriminate against them because of their disability. But what's surprising is a lot of people don't realize this, but the employer must know that the employee is disabled. A lot of people who have disabilities are really good at hiding them, but in order for somebody to have the intent to discriminate, they have to know about the disability. Now, does the employer have to know exactly what that disability is? Well, no, the doctor's note doesn't need to go into that detail, but it does need to go into enough detail to alert the employer that you're disabled and what your restrictions are. Okay, that's pretty simple. What makes this area of law far more controversial is the fact that it's not just the law. What makes it more complicated are reasonable accommodations. So let's unpack that. What is an accommodation? If the employee's job could be changed to allow a disabled worker to perform the essential functions of the job, that would be an accommodation. But the accommodation must be reasonable. Now, what does reasonable mean? And that's where it gets really difficult. Almost impossible to answer because that is a jury question. The fact finder of the case will decide whether or not that requested accommodation was reasonable or not. But let's do an example. Let's say you broke your leg and you work on the fifth floor of an old building and it doesn't have an elevator. And the expected recovery time is six weeks. And there's no way you're going to be able to go up and down five floors on crutches. Could you request that, as opposed to working on the fifth floor, that you just for those six weeks you work on the first floor? Well, that would be, to me, a reasonable accommodation. It's temporary and you'd be able to do the essential functions of your job. Okay, let's twist that hypo. Let's say your job, absolutely, you must be on the fifth floor, special piece of equipment up there. Okay, could you request that the company install an elevator to the cost of a half a million dollars so that you can get up there in that time frame? Well, probably not. I don't think a jury would hold that to be reasonable. But you could probably request a temporary leave of absence for those six weeks while you heal and then you can return to your job. That would probably be a reasonable accommodation. But it depends. It depends on the employer. It depends on the job duties. It depends on the employees. So you cannot answer those in a vacuum. You have to go on a case by case basis. Next, let's discuss the interactive process. At its basic level, this is really simple. If you're disabled and you request a reasonable accommodation up here, the employer is required to consider that and work with you. If your requested accommodation actually doesn't work for them, they're required to try to help find an accommodation that would work. So you can continue working. So at its simplest level, if they don't help you or they don't work with you, you can also sue them for failing to engage in the interactive process. It's its own cause of action. Actually, under this umbrella of disability discrimination that we're talking about, it's actually three separate causes of action. Disability discrimination. They fired you because you have a disability. They failed to give you a reasonable accommodation and they failed to engage in the interactive process. The three of those combined to make a very powerful lawsuit. If you are discriminated against due to your disability and if you're fired, what kind of monetary remedies are available to you? Let's look at that in more detail. First and foremost, if you've been terminated because of your disability, you can recover your economic damages. Those are your lost wages. So if you're fired, you're not earning your salary anymore. That's a very tangible economic loss that the jury can measure. Secondly, you can recover your emotional distress damages. I mean, to be fired because you have a disability. It's very barbaric in a certain way. And these damages are often the largest component of these cases, especially in severe cases. They're very real and cannot be diminished. Third, punitive damages. Everybody's heard about punitive damages. Those are the damages meant to punish the employer for their horrendous conduct. They're difficult to win, though, because you have to prove that the termination or that the discrimination was done with malice, oppression or fraud. That's difficult to do. It has a higher burden of proof. But if you have a good lawyer, the good lawyer can ring that bell more often than not. And finally, attorney fees. Wonderful that the California Fair Employment and Housing Act, this is the government code 12940, provides for attorney fees if you are discriminated against, which is really important because that provides a significant hammer to push these defendants into an early settlement negotiation. Because if liability is good, they won't want to incur too much in attorney fee liability because that could be very large at the end of the day. So, OK, should you file a case? Would it be worth it at the end? What would your case be worth? Well, we don't know what your case would be worth because, one, every case is different. There's hundreds of factors that go into settlement value. But secondly, we don't even have averages because settlement agreements are confidential. So there aren't even published averages on this. But I can tell you this, if you are able to find a good employment lawyer to take your case on a contingency and invest his or her own time, money and most importantly, effort into the case, you're more than likely to be satisfied with the financial outcome of the case. So that's all I have for you. Take care.