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Actual Disability Not Necessarily Required to Bring Disability Claim

One of the most interesting aspects of disability discrimination law is that it is not necessary to actually have a disability in order to receive protection, so long as an employer regards you as having a disability.

The Americans with Disabilities Act (ADA) provides 3 ways which an employee may be protected: if they have an actual disability, a record of disability, or are regarded as being disabled. The actual disability and record of disability protects people in the same way that the law protects those who are regarded as being disabled. This is because the law seeks to prevent discrimination in all forms against the disabled.

A recent case reaffirmed the strength of this broad protection. In Butler v. Louisiana Department of Public Safety & Corrections (M.D. La ), a Louisiana state trooper, Butler, was regarded as disabled because his employer allegedly believed he had obsessive compulsive disorder. Butler sued his employer because he was subjected to excessive inquiries into whether he was mentally fit for duty and was denied overtime opportunities. The employer denied the allegations but also claimed that if it did discriminate it was because Butler posed a direct threat. The direct threat defense means that the employee, because of their condition, poses a significant safety risk to the health and safety of the employee or others.

The employer then sought to obtain Butler’s psychiatric records order to prove its direct threat defense. However, the court refused to require Butler to turn over his records. The court explained that it was not necessary to prove whether Butler actually had a mental health disability because an employee may be covered by the regarded as protection of ADA with or without actual disability.

This means that so long as an employer believes an employee has a disability that limits a major life activity; it is irrelevant whether the employee actually has it. Even if the employer claims a direct threat defense, that evidence is limited only to what the employer has actually observed. However, the exception is that if the employee puts his own mental health at issue by claiming emotional or mental distress damages the plaintiff’s emotional health will be up for discussion and review.

If you have been discriminated against by an employer, former employer, or potential employer due to your disability or perceived disability contact a California employment law attorney right away. You may be entitled to a lawsuit or settlement for an employer’s discrimination or discriminatory practices. To learn more contact the employment lawyers of the Law Offices of Michael S. Cunningham, LLP. To schedule a free consultation call (858) 376-7390 today.

9th Circuit Says No Cause Termination Can Be Wrongful Termination in Retaliation Cases

The Ninth Circuit recently released an opinion that upholds the burden of proof that an employer must claim in retaliatory discharge lawsuits. In Westendorf v. West Coast Contractors (9th Cir. ) an employee alleged that her male employee and supervisor made sexist remarks towards her. The remarks allegedly included suggestions that the employee wear a French maid’s uniform; and also involved obscene comments about tampons, women’s breasts and orgasms. The employee made a formal complaint to her company’s president. The president allegedly reprimanded the supervisor but apparently did not seem to take the allegations seriously. The employee then alleged that the supervisor began making strange demands of her and harshly criticizing her for not following them. She complained a second time to the company president, who she says exclaimed that he was tired of listening to her and thought it was ”would be best if she got her personal items and left.” At which point she was escorted off the building. The company president alleges she had quit, but the employee maintained that she was wrongfully discharged for reporting sexual harassment.

The employee sued the company alleging it had created a hostile work environment and that it retaliated against her for speaking out about it. The district court dismissed the employee’s case on the grounds that she had been unable to prove either claim in the complaint. However, on appeal the Ninth Circuit found that the retaliation claim should not have been dismissed.

The Ninth Circuit held that because the company failed to provide any explanation for the alleged firing except that the employee quit, it could not get the case dismissed. The court highlighted that even if the company defended itself by saying that they fired the employee because of the employee’s failure to follow the strange directions that her supervisor gave her, that the reasoning would be pretextual because the employee had no record of insubordination before she complained about the harassment.

This case sets helpful precedent for employees in discrimination and harassment retaliation cases because it shows that when an employer fails to provide a reason for a termination or provides a frivolous reason, the employer cannot get the case dismissed early.

Wrongful termination because of harassment and discrimination is illegal. To learn more about how to exercise your legal rights contact the experienced California Employment Law attorneys of the Law Offices of Michael S. Cunningham, LLP. Call (858) 376-7390 to schedule a free consultation.

Non-Facially Discriminatory Policy or Act: After Initial Case Proved

In this article we will explore the one of the last things a plaintiff brining a disability discrimination case must consider where the discrimination involves a non-facially discriminatory policy or act. Not facially discriminatory means that the employment action happened for a reason besides an exclusion of disabled individuals. If the employee experienced the adverse employment action (not hired, passed over for promotion, fired, etc.) the employer can defend itself by stating that the decision it made was based on legitimate reasons, not based on the employee’s disability. This is also referred to as showing that the reasons where pretextual.

For example, if the disabled individual was not hired the employer could claim that it chose a more experienced individual; or if the employee was terminated the employer could claim that the employee had behavioral problems or committed misconduct.

The burden of production finally transfers to the employee to prove that the employer’s defense is actually pretextual (half truth or lie). The employee can prove that the employer’s response is pretextual by discrediting the explanation in a variety of ways, including:

  • If the employer’s story has changed
  • The employer didn’t follow its usual policies
  • The employee’s work related problems are disproved
  • The employer had a double standard in judging the employee
  • A history of targeted harassment, or high level of scrutiny
  • Timing: for example if the employer terminated the employee 1 week after learning of a diagnosis

There are a few limitations to showing pretext. One defense is stray remarks of an employer, for example 1 or 2 isolated comments that are not directly discriminatory usually cannot be enough to show pretext. Also, if the employer hired someone with allegedly superior qualifications, the disabled individual must show that actually they were much more qualified. The standard is quite high, it was articulated in a U.S. Supreme Court Case, Ash v Tyson Foods, Inc. (2006). The Court said that the disparity between the qualifications must be so much better that they “virtually jump off the page and slap you in the face.” Also, the employer’s mere knowledge that certain groups would be excluded by a particular policy is not enough to show discrimination unless the employer decided on the policy because of its effect on a protected class.

Before filing a case for discrimination contact the California employment law attorneys of the Law Offices of Michael S. Cunningham, LLP. Call (858) 376-7390 today to schedule a free case evaluation.

After Proving an Initial Disability Discrimination Case for a Facially Discriminatory Policy

It is important to understand how a case is likely to play out if you are considering pursuing a disability discrimination case. This article will explain some defenses that an employer may assert after an employee has proved that they have a prima facie case (a non-frivolous case). It will only review when the employer has a facially discriminatory policy.

Burden of Production Shifts

Generally, the next steps under both Americans with Disabilities Act (ADA) and the Fair Employment and Housing Act (FEHA) are similar. The employer must show that they did not discriminate against the employee.  This is also known as the shifting burden of production. This article will not review the requirements for the prima facie case, but to briefly summarize; the burden of production is first on the employee to show that they were qualified as disabled and were subjected to adverse employment action. Then the burden of production goes to the employer.

Failure to Perform Essential Functions of Job

The employer can rebut the allegations of unlawful discrimination in a few ways depending on the type of discrimination act that was alleged. If an employer had a policy that said they do not hire individuals who cannot walk this would be a facial discrimination policy, meaning that the employer could rebut the evidence is by showing the employer can show that the employee could not perform the essential functions of the job.

Inability to Reasonably Accommodate

If an employer wanted to claim that the employee could not perform the essential functions of the job they would have to also prove that it is also impossible to provide the employee with reasonable accommodations. This can be true even if a possible accommodate would exist, but would pose an undue hardship on the employer; for example if the accommodation would be much too expensive and take too much away from productivity.

Direct Harm to Self or Others

The other defense that an employer can assert to a disability discrimination claim is that if the employee was hired, that the employee posed a direct threat to himself or others. There are 3 elements to this defense:

  1. the employee’s condition was very likely to cause harm to herself or others;
  2. The employer can provide objective evidence to support this;
  3. No reasonable accommodation could take away the risk.

If you are considering suing you employer, first contact the experienced California disability discrimination attorneys of the Law Offices of Michael S. Cunningham, LLP for a free consultation Call (858) 376-7390 today.