Category: Medical Discrimination

All of us are well aware that it is an unfortunate reality that there is discrimination in the workplace. However, when it comes to discrimination, most people usually only think of discrimination based on one’s race, gender, sexual orientation, or religious affiliation. An often overlooked and serious form of discrimination in the workplace is mental health discrimination. If you have a mental health issue you may be in a situation where an employer is knowingly, or even unknowingly, discriminating against you. If you are suffering mental health discrimination you do not have to suffer in silence. Fortunately, under California and federal law, you are provided certain protections from mental health discrimination at work.

As a starting point, it is important to understand what mental health discrimination in the workplace looks like. This article will provide examples and cases to help you better understand how mental health discrimination is addressed in the California workplace.

What is Mental Health Discrimination at Work?

In some situations, mental health discrimination may be hard to identify. Part of the reason is that mental health issues are not always observable. Also, an employee may be afraid to disclose any mental health issues for fear of stigma and stereotypes, even if it is for the purpose of receiving reasonable accommodation.

Mental health discrimination at work is where an individual, with a diagnosable mental health condition, is treated less favorably than other employees because of this disability. This discrimination can be either direct or indirect, intentional or unintentional. Mental health discrimination can come in various forms such as failure to provide a reasonable accommodation, failure to provide equal opportunities, and even harassment or victimization.

California and federal law provide legal rights to prevent illegal workplace treatment against employees diagnosed with a mental health condition.

Examples of Mental Health Discrimination at Work

To help better understand mental health discrimination, here are some examples that highlight how this type of medical condition discrimination looks in the workplace.

Direct Mental Health Discrimination

The most obvious examples of mental health discrimination are usually direct. Direct mental health discrimination can be seen when an employer (or supervisor) treats an employee less favorably than others because of their mental health condition. For instance, an employee may be a top performer, but they suffer from severe anxiety or bipolar disorder. If an employer refuses to give this employee an opportunity for a promotion while others with similar qualifications have, this may be a form of mental health discrimination. In this example, it would also be considered mental health discrimination if the employee was denied the same promotion because their spouse or partner suffered from a mental health condition.

Indirect Mental Health Discrimination

This type of discrimination typically occurs through a workplace practice or policy that is for all employees yet results in a significant disadvantage to an individual or group of individuals with a mental health condition. For instance, an employee may have a mental health condition that requires them to take an evening medication that causes drowsiness. Requiring all employees to have rotational shifts in which, during certain weeks, employees are required to work the late or overnight shift may be an example of indirect mental health discrimination.

Discrimination Arising from Disability

A third form of discrimination occurs when discrimination arises from a disability. This most often occurs when an individual is disciplined for their behavior that was caused by their disability. For instance, an individual may have a diagnosable mental health condition that has caused them to be absent from work. Discrimination because of their absence would not be direct or indirect but arising from their disability.

Mental Health Discrimination Cases & Real-Life Examples

There have been several cases that have addressed mental health discrimination at work. Here are some cases to show how mental health discrimination in the workplace is addressed:

1. Termination of an employee diagnosed with severe depression – An employee with severe depression requested and was approved time off to recover and heal. The employee’s request was based on his doctor’s recommendation. When the employee returned to work, he was fired with an explanation that he could not be trusted to perform his job. The employer ended up paying $250,000 and agreed to implement policies, train executives, and distribute material pertaining to requirements for treating employees with disabilities.
2. Harassment of employees with post-traumatic stress disorder (PTSD) – An employee with PTSD was forced to quit his job to avoid ongoing abuse and harassment regarding his mental health condition. The supervisor referred to the employee as a “psycho” and consistently mocked his therapy sessions for PTSD. The employer paid $75,000, received an injunction against future discrimination based on one’s disability, and was required to provide a letter of apology and recommendation for the employee.
3. Termination after requesting extended leave – An employee was terminated despite making a request for extended leave due to a collapse on the job resulting from stress and anxiety. The employer paid $140,000 and agreed to train their human resources and supervisory employees on the requirements of the Americans with Disabilities Act (ADA).
4. An employee with psychiatric disability cleared for work – An employee diagnosed with a psychiatric disability was hospitalized. The employee was terminated from their job after being medically cleared to work. The termination, in part, was also alleged to be due to the employee’s need to take future leave for medical appointments. The employer paid $125,000 and agreed to implement an ADA reasonable accommodation policy, provide training, and submit periodic reports to the Equal Employment Opportunity Commission (EEOC).
5. Employee Termination Related to Medication – An employee with attention deficit hyperactivity disorder (ADHD) took medication for this diagnosis under the prescription of a healthcare provider. A manager instructed the employee to stop taking the medication and take a drug test. Before any test results were received the employee was discharged. The employer paid $100,000, agreed to conduct training, provide regular reports to the EEOC, and publicly post a notice that confirms their obligations under the ADA.

Remember, it is important to file your claim before the expiration of the statute of limitations. You have 3 years from the date of discrimination to file an administrative complaint with the California Civil Rights Agency (formerly called the Department of Fair Employment & Housing). Generally, with the EEOC, you have 180 days from the date of discrimination to file a claim.

Conclusion

As you can see, mental health discrimination can come in a variety of ways. If you believe you are suffering mental health discrimination at the workplace, do not let it continue without addressing it. Even if you are unsure if you are being discriminated against because of your mental health condition, it is highly recommended that you seek the opinion of an experienced California employment lawyer. They will be able to assist in evaluating your situation and determining your best course of action.

People often ask an attorney about how to prove disability discrimination at work, as often the discriminatory practice isn’t always obvious. A person looking in might not realize what is normal and what is not standard practice at your particular workplace. Sometimes a person may wonder if they really have been a victim of discrimination in the first place, or if the conduct of their employer is, or qualifies as, discrimination in the workplace.

While the misconduct may sometimes be subtle, or whether it’s hard to miss,  the discrimination usually involves at least one of the varieties of discriminatory conduct detailed below. Each of them is helpful to remember if you are thinking about how to prove discrimination based on disability at your office or another workplace.

6 Ways to Prove Disability Discrimination at Work

A  quick way to know how to prove disability discrimination and/or determine if you were the victim of  disability discrimination at work is to remember the mnemonic, STAMPED, which stands for:

Similarly situated employees receive better 

Treatment. As a result of requesting an

Accommodation or

Mentioning an adverse action you were not

Promoted by your 

Employer because you have a 

Disability

Each of the first five letters is one of the many ways an employer may have acted towards you that demonstrate disability discrimination in the workplace.. The last letter in STAMPED is a requirement that must be met for any of the five ways to be valid.

1. Similarly Situated Employees

The first way is when your co-worker, who holds the same or similar position as yours (is similarly situated) is treated differently, usually better because they do not have a disability. This type of behavior isn’t always obvious. An example would be when nobody seems to mind when your co-worker takes an hour and ½ for lunch when you are both allowed an hour, but if you exceed the hour, your boss writes you up.

2. Receiving Poor Treatment

While the above way to prove disability discrimination at work requires a comparison between how you and another employee are treated, sometimes you are alone in your position without anyone who you can use to compare the actions of your employer with. You don’t always need that other person to prove poor treatment. Sometimes the poor treatment constituting discrimination is overt. Perhaps your employer loudly complains to other workers that you’re lucky you have your job after having exhausted all your available sick days. You shouldn’t be called out for using the same amount or more sick time than another, just because the basis for you using your sick days is that a disability-related condition is making you unable to work that day.

3. You Ask for an Accommodation

As you might be aware, disabled persons can request reasonable accommodations to help them perform the essential functions of the job. Maybe you’re a diabetic and need to snack often to keep your blood sugar stable when generally, employees are not permitted to eat outside of break or lunch. You ask if your break time can be divided into three (3) of five (5) minute long segments, instead of one (1) fifteen (15) minute break. There is no basis as to why this isn’t possible, as not everyone takes breaks at the same time, and as long as they add up to the same duration. The segmented breaks would not result in a decrease in your productivity but your employer simply refuses to allow you to take the shorter, more frequent, breaks.

When there is no valid reason why your request for accommodation was allowed, also may be a way to prove discrimination based on disability.

4. You Mention an Adverse Action

Continuing with the situation described in the last item, as a result of being denied the more frequent but shorter breaks, you emailed management to discuss the unfairness of the situation and to again request the accommodation. Your direct supervisor, the one that denied the accommodation in the first place was at the meeting.  Two days later, after never having received a disciplinary report due to work performance, you receive a write-up that you are falling behind on certain assignments. However, you always turn in your assignments by the date they are due, and you never turn them in late. Based on this hypothetical situation, you may be able to prove disability discrimination. 

5. Have You Been Denied a Promotion You Deserved? That Might Help You In Proving Disability Discrimination

Let us imagine you applied for a promotion to become a supervisor at your job. The company hired someone else, but when you chatted with the new supervisor about their past work experience working retail, it seems all their past jobs have been in an office setting. It doesn’t make sense that the company chose them over you to fill the position due to your superior qualifications. This situation may show how you were treated differently than the person they hired, proving disability discrimination. This as well applies to a person with superior qualifications that weren’t hired due to disability. 

6. Your Employer Must Know you are Disabled or be Regarded as Disabled

The last item on the list is a precondition for all the ways how to prove disability discrimination listed above.  This one is simple: you must be certain your employer is aware you are disabled, or they must believe you are, in order for the negative treatment or action to be based upon a disability. 

While helpful, the above list may omit certain, less common ways a person might be discriminated against at work. An attorney can help you determine how to prove disability discrimination and what are the next steps to take to stop this type of treatment.

So, if you feel that you’re a victim of disability discrimination, don’t hesitate to book a free consultation with our employment lawyers in California.

Medical Condition Discrimination

Medical condition discrimination denies the employee what should have been rightfully theirs if it weren’t for their medical conditions. In the workplace, as far as the law is concerned, employers are not allowed to engage in any form of discrimination against any individual due to their medical condition. In practice, employers are to instead offer due accommodation to their employees who live with a medical condition.

The only ground exempting them from this obligation is when providing such accommodation facility results in extreme hardship. Depending on their medical situation, certain employees who feel discriminated against can bring an action against their victimizing employers for damages. In this piece, we’ll highlight and elaborate on certain details that survivors of discrimination practices need to keep in mind before considering filing a suit for discrimination.

 

Employers are not to refuse to hire anyone with a medical condition

Employers are expected to assess job prospects with little to no regard for their supposed or real medical conditions. Discrimination based on medical condition is outlawed in any form of hiring which includes:

• Refusal to offer decent accommodation
• Refusal to participate in a timeous, well-intentioned interactive session with employees who need a reasonable accommodation
• Demotion
• Pay reduction
• Promotion denial
• Refusal to hire
• Denial of benefits
• Harassment
• And any other discrimination in any manner due to the employee’s med conditions.

Interestingly, it’s great you know that the enactments against medical condition discrimination are not restricted to employers. Similarly, they apply to labor organizations and unions. These organizations are forbidden from attempting the exclusion, expulsion, and restriction of memberships to a certain individual because of their national origin. Moreover, this type of discrimination is relevant to employment agencies and apprenticeship training schedules.

 

The legal forms of medical conditions that both California and US federal legislations protect against

The relevant law for general discrimination and employment issues in California is the California Fair Employment and Housing Act (FEHA). Under California law, a “medical condition” is regarded as any of the following:

• Any health deficiency linked to a finding of cancer or a history or record of cancer
• Genetic characteristics

Medical conditions also intersect with physical or mental disabilities. A “mental disability” accounts for any psychological or mental condition that restricts the main life activity. These restrictions are assessed with little to no concerns about assistive tools, mediation, or decent accommodations. Examples of mental disabilities may account for chronic ailments such as schizophrenia, anxiety disorder, dementia, clinical depression, bipolar disorder, and others. Physical disabilities involve temporary or permanent conditions such as impaired eyesight, impaired hearing, chronic diseases, hepatitis, diabetes, etc.

 

The Issue of Medical exams to qualify for a job

Where other probable employees aren’t expected to attempt medical exams, employers can’t request a job prospect to attempt such exams either. Also, if the exams have little or nothing to do with the business expediencies, there’s no point, according to law, demanding such exams. Inexact application questions and improper interviews may be a symptom of likely violations of medical condition discrimination.

Most times, interviewers designated by employers request answers to issues of general health, med condition, physical or mental disability. This should not be so. However, it is one thing for the employer to want to know more about if applicants can carry out the core tasks of the work and how they’d carry out such work. And, this may be permitted. But, if an employer goes to the extreme of asking general or specific medical questions which can be adjudged as making the response a determinant to getting the job, there’s certainly fire on the rooftop.

The only reasons your employer may ask you questions relating to your medical state are these:

• The employer feels the employee can’t carry out a job effectively due to a medical condition
• The employer needs some medical report to effectively assist the employee with decent accommodation.

 

What Reasonable Accommodation means

Do you wonder what “reasonable accommodation” would be? A reasonable or decent accommodation goes farther than barely arranging some structural facility for the employee or prospect living with a medical condition. Indeed, reasonable accommodation refers to any arrangement that will let the applicant or employee carry out the core job functions. This would account for

• Reshuffling the job;
• Adjusting work schedules;
• Part-time scheduling;
• Reassigning to an unfilled position;
• Modifying to training materials
• Adjusting equipment
• Adjusting work policies

Unless it would result in extreme hardship, the employer is responsible for providing reasonable accommodation to the employee. In defining “undue hardship”, the cost and nature of the facility would be considered. Moreover, the general fiscal resources relevant to making the facility available will be looked at as well. Again, the form of operations of the personnel of the organization will also be considered.

 

Filing a complaint on medical condition discrimination

Discriminating against an employee due to their medical condition violates the law in California and the US. On the federal scene, there is the Equal Employment Opportunity Commission (EEOC) which imposes federal Anti-discrimination laws. At the state level, the California Department of Fair Employment and Housing (DFEH) deals with applications against medical condition discrimination.

Before you file a discrimination lawsuit, it’s advisable you talk the issue over with a supervisor or HR to try and resolve it. If your efforts yield no result, then you may lodge a complaint with the DFEH or the EEOC.

In certain cases, the law in California provides comprehensive protections against discrimination issues than the federal legislation. If you want to file your complaint personally in California, it’s required you exhaust all prior administrative facilities before doing so. However, if you engage an attorney to do that for you, your attorney, without needing to wait for some administrative procedure, can get an instant right to sue notice.

 

Suing your employer for medical condition discrimination in California

It’s your civil right to enjoy the opportunity of seeking and holding employment without any discrimination based on a medical condition. Generally, an employee needs to just file a complaint in a civil court. This demands getting “a right to sue’ notification before you can take your case to court. Bringing an action in court is only advised if you’ve got an attorney. Without needing to wait for any investigation by the DFEH, your attorney can help you obtain the notice and file your matter in a civil court in California.

 

Employer’s Retaliation against workplace discrimination lawsuits

If your employer moves to retaliate against you for reporting discrimination, you can file a complaint with the DFEH. An employer should not fire an employee for bringing a workplace discrimination lawsuit. Doing so is likely to be considered a retaliatory move, and may be regarded as wrongful termination.

 

Every person who can perform the essential or required parts of a job should have equal rights and opportunity to do it. However, sometimes, due to their physical, mental, or medical disability, they are often denied. This is what the anti-discrimination laws in California stand to work against. And, these laws, especially, the ADA and the FEHA, operate to help aggrieved people affected by disability discrimination get over this ugly trend.

In this week’s blog article, you’ll get to know certain important things about how the law works against workplace disability discrimination in California.

What’s Workplace Disability Discrimination?

Disability discrimination has a lot to do with the abnormal treatment of any person due to imbalances or perceived deformities in either their physical or mental state or because of their genetic or medical condition.

Many canny employers use this situation to weed out otherwise qualified but disabled people from working with them. The occurrence of this attitude to potential or existing persons in a work situation is what qualifies as workplace disability discrimination.

Major Applicable Anti-Discrimination Laws in California.

As a Californian, you can be protected against disability by two laws.

1. The Americans with Disabilities Act – on the Federal scene
2. The Fair Employment and Housing Act – at the State level

These legislations aim to ensure everybody enjoys employment opportunities free of discriminatory practices. This applies with or without any purported or perceived mental or physical disabilities on the part of the employees.

The impairments that are considered Disabilities

Of note is the point that not all disabilities that are discriminated against can form a cause of action before the courts. So, you need to advert your mind to the qualified series of impairment.

These disabilities happen to be

1. A mental disability
2. A physical disability, or
3. A medical or genetic condition.

Legally assessing a physical, mental, or medical condition may be a hurdle to be scaled for employees. Why? They must pass a certain test to be protected under both federal and state laws. The specific test now has to do with the category the disability of such an employee comes under.

Physical Disabilities

The most common forms of disability are physical ones. Most times, these physical disabilities are anatomical loss, cosmetic derangement, bodily state that touch one or more of the main systems and restricts the main life activity.

How to prove an employee is physically challenged?

To prove that an employee suffers from a physical disability, they must usually show three things:

There must be physical impairment of any of the major body systems. Again, an employee can show that they have some health impairment that takes some special education. And ultimately, they may also prove disability by showing they have a history of some medical condition(s).⁠

Which Categories of Employers can I hold responsible?

It’s certainly not all sorts of employers that you can walk up to alleging them for discriminatory practices against you. In California, any of the employers you can be held responsible fall within the categories outlined here

1. Persons or organizations that usually hire five or more employees.
2. Persons or organizations reputed as an agent or representative of an insured employer
3. Federal, State, or local organizations.

It’s important to note that religious groups and religious nonprofits do come under an exemption from the above-mentioned categories.

Who are those entitled to protections?

1. Employees

In California, one of the employment practices that can be taken as unlawful is when an employer discriminates against ‘a qualified individual’ in a work scenario. In this context, an employee refers to any person who is under the control and supervision of an employer. To come in as an employee, the employee needs to have had some agreement with the employer to be compensated. The compensation may be in form of monetary payment, or some higher appointment, or some other equities.

2. Job Applicants

Aside from compensated employees, the disability laws in California also apply to individuals who apply to become employees. Many times, certain persons have been denied job opportunities not really because they do not meet the required standards to effectively render their services, but because certain employers often decide to exclude certain sets of people due to their disabilities.

3. Independent Contractors. ⁠

Although independent contractors do not enjoy protection from disability or medical condition discrimination, the anti-discrimination laws in California, however, give a level of protection against the infliction of work-related harassment from them. Here, by ‘an independent contractor’, we mean to refer to anyone who offers a definite service without supervision, and they have a level of control and tact as far as achieving their results are concerned. Oftentimes, they charge a particular sum of money for a specific service.

Frequently Asked Questions

1. Is there any difference between the FEHA and ADA?

Yes, there are a few of differences between both laws. While both laws address discrimination issues, one, the FEHA, is the Californian version while the other, the ADA, remains the federal counterpart. However, FEHA offers more protection for employees that are disabled.

2. 2. Between the ADA and the FEHA Act and Law, which one should I seek my protection under?

To be definite, although the FEHA is modeled after the ADA, it is important to know that FEHA rather provides a higher level of protection to employees who might have been injured or aggrieved due to discriminatory practices. As a result, that poses some sort of higher standard for employers to comply with. So, as a Californian employee, you can always bring the claims for relief under the FEHA as it offers a greater level of protection.

3. How many employers does my employer need to have before I could bring a disability lawsuit?

Even though there is an anti-discrimination law in California that attempts to discourage discrimination from the work areas, however, the law does not affect small employers. This is then to say if you are an employee under an organization that employs lesser than five (5) people, you may enjoy little to no access to the enjoyment of this disability right. Flowing from this, to take your employer to the courtroom, that employer must have had at least five persons under their hire. Even at then, seeking legal counsel or consultation would prove a better idea.