Under the Federal ADA, as well as its California counterpart, Fair Employment and Housing Act (FEHA), it is unlawful for any employer to harass or discriminate against any qualified employee because of that employee’s disability or physical condition. However, under recent amendments to California’s FEHA, the definition of what constitutes a “disability” is far less restrictive and it is favorable to employees under California law than under federal law.

This means that many employees with less restrictive, less severe disabilities may be covered under California law, but not federal law. As a practical matter, California law has always been more advantageous than the federal ADA because of the availability of unlimited general and punitive damages. However, there are substantive differences between the two laws that will cause certain cases filed under the ADA to be thrown out, while the same case would result in a large verdict for the employee under California law.

The reason for this is that, under the ADA, workers with disabilities that do not substantially interfere with one or more major life activities are not protected, while in California, the limitation on major life activities need not be substantial. Further, correctable disabilities, like poor eyesight or high blood pressure will not be protected under federal law unless they substantially limit the individual even in their corrected state. In California, however, corrective measures are irrelevant to the determination of whether an employee is “disabled” unless the corrective measure itself is limiting. This means that in California an employee with a corrected disability, like poor eyesight, would be protected from discrimination. But the very same employee would be vulnerable to harassment and discrimination under federal law.

Lastly, under California disability law, an employee may show that his/her disabling condition “limits” the major life activity of “working” simply by demonstrating that it prevents him/her from doing his/her own job without reasonable accommodation. Under federal law, an employee must show that, in addition to being prevented from doing his/her own job, an employee must show that the disability prevents him/her from performing a broad range or class of jobs.

Under both state and federal law, in addition to proving a limiting, or substantially limiting disability, an employee must also show that he/she can perform the essential functions of his/her job with or without a reasonable accommodation.

Once an employee demonstrates that he/she is “disabled,” the employer’s duty to accommodate that disability is fairly rigorous. The employer’s duty to reasonably accommodate disabled workers may require job-restructuring, transfer to an open position with less demanding duties, flexible work schedule, or permitting the employee to take a leave of absence. Whether an accommodation would be “reasonable” depends on many factors, including the size and resources of the company. A rule of thumb, however, is that the company will be required to do whatever it can do to accommodate a disabled worker unless the cost of doing so would be prohibitive.

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