Disability Discrimination Under The California Fair Employment And Housing Act (FEHA)

Vocational rehabilitation was eliminated for injuries occurring on or after 01/01/2004. Now, an injured worker needs to attempt to return to work with their at injury employer.

California has a law called the Fair Employment and Housing Act (FEHA). Under this law, the employer is required to meet with an employee who has a disability (either work related or non work related) and attempt to find either a modified job at the same rate of pay or an alternate position at the prevailing rate of that position that is compatible with the disability. This meeting is called the interactive process. If an employer fails to engage the employee in this interactive process or insists that the employee cannot return to work unless they have a doctor remove all work restrictions, the employer is in violation of FEHA and can be subject to significant legal liability in certain cases. However, it should be noted that the employee should make an attempt to contact the employer and tell the employer that they want to return to work at that employer.

The employer is not require to accommodate a disability that is severe enough that accommodating the disability would create an undue hardship on the employer, create a danger to the employee, or a danger to other employees. In addition to undue hardship, if the employer can prove that there are no modified/alternate positions available, than the employer will likely prevail in a disability discrimination claim under FEHA.

If you have tried to return to work with your employer after reaching MMI and your employer has not engaged in an interactive process or simply insists that they will not take you back unless you have no work restrictions, call this office immediately so we can determine if you have a viable FEHA claim.

An important factor in evaluating a potential FEHA claim is the desire of employee to return to work either with the at injury employer if the at injury employer is cooperative or with a different employer. The employee must be prepared to document their job search efforts. This is called mitigation of damages.

The following remedies are available to an employee in a FEHA case.

1. Reinstatement of job with at injury employer (Case settles).
2. Back pay – lost earnings caused by the failure to accommodate.
3. Front pay – Future projected loss of earnings caused by the failure to accommodate.
4. Emotional distress damages.
5. Attorney fees and costs in addition to the above remedies.

Claims before EEOC and DFEH, a complaint must be filed with those agencies within one year of the discriminatory conduct. Before you can file a discrimination complaint in Superior Court, you must file a complaint with EEOC or DFEH. After obtaining a right to sue letter, a summons and complaint must be filed no more than one year after the date of the right to use letter in the correct branch of the Superior Court.