DISABILITY AND MEDICAL CONDITION DISCRIMINATION AND HARASSMENT

What is Disability and Medical Condition Discrimination and Harassment?

 

Your employer may be liable for discrimination and/or harassment if they treat you differently or poorly because of your disability and/or medical condition.  Generally speaking, employees with disabilities and/or medical conditions have certain legal rights that their employers must follow.  These rights include:

 

• The right to “reasonable accommodations” for your disability or medical condition.  What reasonable accommodations are depends on many factors, including your job duties, physical capabilities, related medical conditions, and your employer’s business needs;

• The right to medical leave.  The amount of leave you’re entitled to depends on several factors, including your physical capabilities, your physician’s assessment, and the specific laws under which you request the leave;

• The right to continue working at your job as long as you are physically able to perform your job duties, and to resume your same job, at your same hours and rate of pay, after medical leave.

 

Sometimes their action is directly related to your disability or medical condition, for example, if your employer violates one of the above rights.  But often, the discriminatory and harassing action is not clearly related to your disability or medical condition.  In fact, any "adverse employment action" your employer takes against you because of your disability or medical condition may be illegal.  What is an adverse employment action?  While there's no definitive list, adverse employment actions can include termination, demotion, and unwarranted writeups or disciplinary actions - anything that might create a hostile work environment.  For example, if your boss promotes your less experienced coworker because of your disability, that action may very well be discriminatory even though it may not be clear to others that it was motivated by your disability.   

 

Is Disability and Medical Condition Discrimination and Harassment Illegal?

 

Discrimination and harassment on the basis of disability and/or medical condition is illegal under a number of laws.  Two important ones are the Fair Employment and Housing Act (i.e. "FEHA") and Title VII of the Civil Rights Act of 1964 (i.e. "Title VII").  Other laws protecting disabled persons and persons with medical conditions include the federal Americans with Disabilities Act (i.e. “ADA”) and Rehabilitation Act, among others. 

 

These laws make it illegal for your employer to discharge, expel or otherwise discriminate against any employee on the basis of their “race, religious creed, color, national origin, ancestry, physical disability, mental disability, reproductive health decision making, medical condition, genetic information, marital status, sex, gender, gender identity, gender expression, age, sexual orientation, or veteran or military status.” (Government Code section 12940; Yanowitz v. L'Oreal USA, Inc. (2005) 36 Cal.4th 1028.)  These laws also provide for the specific rights identified in the previous section.

 

How Do I Take Action Against my Employer for Disability and Medical Condition Discrimination and Harassment?

 

Taking legal action of any kind, including action against your employer, can be complicated.  There are many steps that need to be followed before a lawsuit is filed, and even more steps must be completed after.  These steps may include obtaining a right-to-sue, filing a government claim, and requesting your personnel file, among many others.  For this reason, it is highly advisable that you consult an attorney that focuses on employment litigation.  An employment attorney will ensure that all of the required and advisable steps are met, and will maximize your chance of winning you lawsuit. 

 

Are There Deadlines for Me to File a Lawsuit for Disability and Medical Condition Discrimination and Harassment?

 

Disability and medical condition discrimination cases have numerous deadlines that can come up fast after your termination, so it’s important to speak to our employment attorneys as soon as possible. Generally speaking, public employees are required to submit a Government Tort Claim form within six (6) months of the wrongful action.  For non-public employees, violations of the Fair Employment and Housing Act disability and medical condition discrimination and harassment can generally be brought up to three (3) years after the wrongful action occurred. It is important to retain an employment lawyer and file a lawsuit before the statute of limitations – or deadline – expires on any of your potential claims.

 

What If I Have No Evidence of the Disability and Medical Condition Discrimination and Harassment?

 

Many people who suffer from disability and medical condition discrimination and harassment fail to take any action against their employer because they believe that there is no evidence of their employer's illegal actions.  However, employment lawyers have various ways to obtain the evidence needed for your lawsuit.  For example, they can request documents (including emails and other electronic evidence) from your employer, subpoena witnesses to testify, and even take the deposition of the people who discriminated against and harassed you.  Very often there is more evidence than you might think exists, and this evidence can help strengthen your case.

 

How Does the Process of Suing My Employer for Disability and Medical Condition Discrimination and Harassment Work?

 

Every case is unique, but most cases follow a similar path: First, the employment attorney will collect information from you to draft a demand letter.  A demand letter tells your employer that you will be filing a lawsuit against them if they do not agree to settle the case soon.  Sometimes the employer will agree to settle, and the case is finished.  But often, the employer will refuse.  If the employer refuses to settle (or if they fail to respond at all), the lawyer will file a lawsuit. 

 

The lawsuit (called a "Complaint") tells the employer the basis for your claims - what you allege they did wrong, and the laws under which those actions are illegal.  The employer must the file a response, often called an Answer. 

 

After the Complaint and Answer have been filed, both sides begin "discovery." Discovery consists of written questions that each side asks the other, as well as depositions of various people.  In a deposition, the attorney for one side asks questions to a person from the other side under penalty of perjury.  Once discovery is completed, both sides will typically attempt to resolve the case at mediation.  In mediation, a neutral party - called the mediator - will talk to both parties in an attempt to get them to agree.  If both sides do, the case is finished.  If they don't, the attorneys begin to prepare for trial.  While some cases do go to trial, many cases settle beforehand.  Cases can take anywhere from a couple of months to three-four years to resolve depending on the unique circumstances in each case. 

 

What Is My Case Worth?

 

Generally speaking, disability and medical condition discrimination and harassment cases have two types of damages: 1) lost earnings; and 2) emotional distress.  The value of your case depends in large part on these two factors, as well as a third - liability. 

 

If you are terminated as a result of disability and/or medical condition discrimination or harassment, you are likely entitled to compensation for your lost earnings - that is, the money you would have earned had they not terminated you.  However, you are still required to "mitigate" your lost earnings damages.  Mitigation means applying for other jobs and getting another job as soon as possible.  It's important to be able to prove that you've attempted to mitigate your damages, so save all job applications, all emails and letters to and from potential employers, and any other documents related to your job search.

 

Anyone who experiences discrimination and harassment likely sustained emotional distress as a result - that emotional distress might appear as depression, anxiety, suicidal ideations, headaches, weight changes, and any other physical or mental condition.  As with lost earnings damages, it's important to document those damages by seeking treatment from qualified medical providers.  If you are depressed as a result, it may be beneficial to see a therapist, psychologist, or psychiatrist.  If you have physical symptoms, seeing your primary care physician or a specialist may be warranted.  If you cannot find treatment (for example, because you no longer have insurance), an employment attorney will be able to help you get the treatment you need.

 

The last factor is liability.  Every case has good facts and bad facts.  The more good facts there are in your case, the more likely it is that you'll win at trial, and the more likely it is that your employer will pay more to settle the case.  How do your attorney and your employer's attorney discover good and bad facts?  Through the discovery portion of the case, described above.  This means that the value of a case can change as both good and bad facts are discovered throughout, and why a good employment lawyer can maximize the value of your case. 

 

GET HELP NOW

 

Our employment attorneys have over a decade of experience fighting for our client's rights against the largest companies in the country.  Our office handles wrongful termination claims, age, disability, gender, pregnancy and race discrimination claims, and whistleblower claims, throughout California, including Los Angeles, Orange, Riverside, San Bernardino, San Diego, Imperial, Ventura, Santa Barbara, and Kern counties.  If you've been discriminated against, harassed, or retaliated against, or if you've suffered from a hostile work environment, please contact our office for a free consultation.