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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.