The Law Offices of Joe DiPaola is a California Plaintiff's Employment Law and Employment Litigation Law Firm. Mr. DiPaola's legal practice is concentrated in the area of employment law and employer-employee relations. Specifically, he handles employment discrimination (sex discrimination, racial discrimination, age discrimination, disability discrimination, pregnancy discrimination), harassment (sexual harassment, racial harassment), collective bargaining, employee severance, employee benefits, employment termination, whistle-blowing, etc.                    The Law Offices of Joe DiPaola, Esq.
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EMPLOYMENT DISCRIMINATION
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Employment litigation and legal representation for California employees in the areas of sex discrimination, racial discrimination, pregnancy discrimination, disability discrimination, age discrimination, sexual harassment, racial harassment, wrongful termination, severance negotiations, wage claims, overtime pay claims, government code retaliation claims, whistle-blower claims, and general employment law.
DISABILITY DISCRIMINATION

Disability discrimination in employment is prohibited under both California and Federal law (see selected text below). Employers are prohibited from discriminating against qualified disabled persons in hiring/selection process, firing/layoff, promotions, wages/salary, job benefits, job training, etc.

An individual with a disability is a person who:

(1) Has a physical or mental impairment that substantially limits one or more major life activities; and
(2) Is diagnosed/has a history of such impairment.

An employer is required to make reasonable accomodations for disabled employees. Reasonable accommodations include, but are not limited to:

(1) Making existing facilities accessible to and usable by disabled employees;
(2) Modifying job schedule or job tasks; or
(3) Modifying equipment or work space.

An employer must make such an accommodation if it would not impose an "undue hardship" on the employer's business. Undue hardship is defined as an action requiring significant difficulty or expense, given the employer's business.

An employers may not ask a disabled job applicant about his/her disability; however, an employer may ask about the ability to perform specific job functions. A medical examination can be a pre-requisite for a job, but only if the examination is required for all entering employees in similar jobs. Medical examinations of employees must be job related.

Illegal drug use is not considered a disability. Tests for illegal drugs are not prohibited.

An employee who has a claim for disability discrimination should promptly contact an attorney regarding his/her rights.




CALIFORNIA GOVERNMENT CODE SECTION 12940 ET. SEQ.

12940. It shall be an unlawful employment practice, unless based upon a bona fide occupational qualification...

(a) For an employer, because of the race, religious creed, color, national origin, ancestry, physical disability, mental disability, medical condition, marital status, or sex of any person, to refuse to hire or employ the person or to refuse to select the person for a training program leading to employment, or to bar or to discharge the person from employment or from a training program leading to employment, or to discriminate against the person in compensation or in terms, conditions, or privileges of employment.
(1) Nothing in this part shall prohibit an employer from refusing to hire or discharging an employee with a physical or mental disability, or subject an employer to any legal liability resulting from the refusal to employ or the discharge of an employee with a physical or mental disability, where the employee, because of his or her physical or mental disability, is unable to perform his or her essential duties even with reasonable accommodations, or cannot perform those duties in a manner that would not endanger his or her health or safety or the health and safety of others even with reasonable accommodations.
(2) Nothing in this part shall prohibit an employer from refusing to hire or discharging an employee who, because of the employee's medical condition, is unable to perform his or her essential duties even with reasonable accommodations, or cannot perform those duties in a manner that would not endanger the employee's health or safety or the health or safety of others even with reasonable accommodations.... ***
(c) For any person to discriminate against any person in the selection or training of that person in any apprenticeship training program or any other training program leading to employment because of the race, religious creed, color, national origin, ancestry, physical disability, mental disability, medical condition, marital status, or sex of the person discriminated against.

(d) For any employer or employment agency... to print or circulate or cause to be printed or circulated any publication, or to make any non-job-related inquiry, either verbal or through use of an application form, which expresses, directly or indirectly, any limitation, specification, or discrimination as to race, religious creed, color, national origin, ancestry, physical disability, mental disability, medical condition, marital status, or sex , or any intent to make that limitation, specification or discrimination. Except as provided in the Americans with Disabilities Act of 1990 and the regulations adopted pursuant thereto, nothing in this subdivision shall prohibit any employer from making, in connection with prospective employment, an inquiry as to, or a request for information regarding, the physical fitness, medical condition, physical condition, or medical history of applicants if that inquiry or request for information is directly related and pertinent to the position the applicant is applying for or directly related to a determination of whether the applicant would endanger his or her health or safety or the health or safety of others.
***

(f) For any employer, labor organization, employment agency, or person to discharge, expel, or otherwise discriminate against any person because the person has opposed any practices forbidden under this part or because the person has filed a complaint, testified, or assisted in any proceeding under this part.

(g) For any person to aid, abet, incite, compel, or coerce the doing of any of the acts forbidden under this part, or to attempt to do so.

(h)

(1) For an employer, labor organization, employment agency, apprenticeship training program or any training program leading to employment, or any other person, because of race, religious creed, color, national origin, ancestry, physical disability, mental disability, medical condition, marital status, sex, or age, to harass an employee or applicant. Harassment of an employee or applicant by an employee other than an agent or supervisor shall be unlawful if the entity, or its agents or supervisors, knows or should have known of this conduct and fails to take immediate and appropriate corrective action. An entity shall take all reasonable steps to prevent harassment from occurring. Loss of tangible job benefits shall not be necessary in order to establish harassment.
***

(C) For purposes of this subdivision, "harassment" because of sex includes sexual harassment, gender harassment, and harassment based on pregnancy, childbirth, or related medical conditions.
***
(i) For an employer, labor organization, employment agency, apprenticeship training program, or any training program leading to employment, to fail to take all reasonable steps necessary to prevent discrimination and harassment from occurring.
***

(k) For an employer or other entity covered by this part to fail to make reasonable accommodation for the known physical or mental disability of an applicant or employee. Nothing in this subdivision or in paragraph (1) or (2) of subdivision (a) shall be construed to require an accommodation that is demonstrated by the employer or other covered entity to produce undue hardship to its operation....




THE AMERICANS WITH DISABILITIES ACT OF 1990 ("ADA") [42 USC 12101 ET. SEQ]
SECTION 12102: Definitions:

As used in this chapter:
***
     (2) Disability. - The term ``disability'' means, with respect to an
individual-
     (A) a physical or mental impairment that substantially limits one
or more of the major life activities of such individual; 
     (B) a record of such an impairment; or
     (C) being regarded as having such an impairment.
***

SECTION 12111: Definitions

As used in this subchapter:

     (1) Commission. - The term ``Commission'' means the Equal
Employment Opportunity Commission established by section 2000e-4 of this
title. 

     (2) Covered entity. - The term ``covered entity'' means an
employer, employment agency, labor organization, or joint
labor­management committee. 

     (3) Direct threat. - The term ``direct threat'' means a significant
risk to the health or safety of others that cannot be eliminated by
reasonable accommodation. 
***
     (6) Illegal use of drugs. -
     (A) In general. - The term ``illegal use of drugs'' means the use
of drugs, the possession or distribution of which is unlawful under the
Controlled Substances Act [21 U.S.C. 801 et seq.]. Such term does not
include the use of a drug taken under supervision by a licensed health
care professional, or other uses authorized by the Controlled Substances
Act or other provisions of Federal law. 
     (B) Drugs. - The term ``drug'' means a controlled substance, as
defined in schedules I through V of section 202 of the Controlled
Substances Act [21 U.S.C. 812]. 
***
     (8) Qualified individual with a disability. - The term ``qualified
individual with a disability'' means an individual with a disability who,
with or without reasonable accommodation, can perform the essential
functions of the employment position that such individual holds or
desires. For the purposes of this subchapter, consideration shall be given
to the employer's judgment as to what functions of a job are essential,
and if an employer has prepared a written description before advertising
or interviewing applicants for the job, this description shall be
considered evidence of the essential functions of the job. 
***
     (9) Reasonable accommodation. - The term ``reasonable
accommodation'' may include-
     (A) making existing facilities used by employees readily accessible
to and usable by individuals with disabilities; and
     (B) job restructuring, part­time or modified work schedules,
reassignment to a vacant position, acquisition or modification of
equipment or devices, appropriate adjustment or modifications of
examinations, training materials or policies, the provision of qualified
readers or interpreters, and other similar accommodations for individuals
with disabilities. 
***
     (10) Undue hardship. -
     (A) In general. - The term ``undue hardship'' means an action
requiring significant difficulty or expense, when considered in light of
the factors set forth in subparagraph (B). 
     (B) Factors to be considered. - In determining whether an
accommodation would impose an undue hardship on a covered entity, factors
to be considered include-
     (i) the nature and cost of the accommodation needed under this
chapter; 
     (ii) the overall financial resources of the facility or facilities
involved in the provision of the reasonable accommodation; the number of
persons employed at such facility; the effect on expenses and resources,
or the impact otherwise of such accommodation upon the operation of the
facility; 
     (iii) the overall financial resources of the covered entity; the
overall size of the business of a covered entity with respect to the
number of its employees; the number, type, and location of its facilities;
and
     (iv) the type of operation or operations of the covered entity,
including the composition, structure, and functions of the workforce of
such entity; the geographic separateness, administrative, or fiscal
relationship of the facility or facilities in question to the covered
entity. 

SECTION 12112: Discrimination:

    (a) General rule. - No covered entity shall discriminate against a
qualified individual with a disability because of the disability of such
individual in regard to job application procedures, the hiring,
advancement, or discharge of employees, employee compensation, job
training, and other terms, conditions, and privileges of employment. 

   (b) Construction. - As used in subsection (a) of this section, the term
``discriminate'' includes-
     (1) limiting, segregating, or classifying a job applicant or
employee in a way that adversely affects the opportunities or status of
such applicant or employee because of the disability of such applicant or
employee; 
     (2) participating in a contractual or other arrangement or
relationship that has the effect of subjecting a covered entity's
qualified applicant or employee with a disability to the discrimination
prohibited by this subchapter (such relationship includes a relationship
with an employment or referral agency, labor union, an organization
providing fringe benefits to an employee of the covered entity, or an
organization providing training and apprenticeship programs); 
     (3) utilizing standards, criteria, or methods of administration-
     (A) that have the effect of discrimination on the basis of
disability; or
     (B) that perpetuate the discrimination of others who are subject to
common administrative control; 
     (4) excluding or otherwise denying equal jobs or benefits to a
qualified individual because of the known disability of an individual with
whom the qualified individual is known to have a relationship or
association; 
     (5) (A) not making reasonable accommodations to the known physical
or mental limitations of an otherwise qualified individual with a
disability who is an applicant or employee, unless such covered entity can
demonstrate that the accommodation would impose an undue hardship on the
operation of the business of such covered entity; or
     (B) denying employment opportunities to a job applicant or employee
who is an otherwise qualified individual with a disability, if such denial
is based on the need of such covered entity to make reasonable
accommodation to the physical or mental impairments of the employee or
applicant; 
     (6) using qualification standards, employment tests or other
selection criteria that screen out or tend to screen out an individual
with a disability or a class of individuals with disabilities unless the
standard, test or other selection criteria, as used by the covered entity,
is shown to be job­related for the position in question and is
consistent with business necessity; and
     (7) failing to select and administer tests concerning employment in
the most effective manner to ensure that, when such test is administered
to a job applicant or employee who has a disability that impairs sensory,
manual, or speaking skills, such test results accurately reflect the
skills, aptitude, or whatever other factor of such applicant or employee
that such test purports to measure, rather than reflecting the impaired
sensory, manual, or speaking skills of such employee or applicant (except
where such skills are the factors that the test purports to measure). 
***

    (d) Medical examinations and inquiries. -
     (1) In general. - The prohibition against discrimination as
referred to in subsection (a) of this section shall include medical
examinations and inquiries. 
     (2) Preemployment. -
     (A) Prohibited examination or inquiry. - Except as provided in
paragraph (3), a covered entity shall not conduct a medical examination or
make inquiries of a job applicant as to whether such applicant is an
individual with a disability or as to the nature or severity of such
disability. 
     (B) Acceptable inquiry. - A covered entity may make preemployment
inquiries into the ability of an applicant to perform job­related
functions. 
     (3) Employment entrance examination. - A covered entity may require
a medical examination after an offer of employment has been made to a job
applicant and prior to the commencement of the employment duties of such
applicant, and may condition an offer of employment on the results of such
examination, if-
     (A) all entering employees are subjected to such an examination
regardless of disability; 
     (B) information obtained regarding the medical condition or history
of the applicant is collected and maintained on separate forms and in
separate medical files and is treated as a confidential medical record,
except that_
     (i) supervisors and managers may be informed regarding necessary
restrictions on the work or duties of the employee and necessary
accommodations; 
     (ii) first aid and safety personnel may be informed, when
appropriate, if the disability might require emergency treatment; and
     (iii) government officials investigating compliance with this
chapter shall be provided relevant information on request; and
     (C) the results of such examination are used only in accordance
with this subchapter. 

     (4) Examination and inquiry. -
     (A) Prohibited examinations and inquiries. - A covered entity shall
not require a medical examination and shall not make inquiries of an
employee as to whether such employee is an individual with a disability or
as to the nature or severity of the disability, unless such examination or
inquiry is shown to be job­related and consistent with business
necessity. 
     (B) Acceptable examinations and inquiries. - A covered entity may
conduct voluntary medical examinations, including voluntary medical
histories, which are part of an employee health program available to
employees at that work site. A covered entity may make inquiries into the
ability of an employee to perform job­related functions. 
***

SECTION 12113: Defenses

    (a) In general. - It may be a defense to a charge of discrimination
under this chapter that an alleged application of qualification standards,
tests, or selection criteria that screen out or tend to screen out or
otherwise deny a job or benefit to an individual with a disability has
been shown to be job­related and consistent with business necessity,
and such performance cannot be accomplished by reasonable accommodation,
as required under this subchapter. 

   (b) Qualification standards. - The term ``qualification standards'' may
include a requirement that an individual shall not pose a direct threat to
the health or safety of other individuals in the workplace. 
***


SECTION 12114: Illegal Use of Drugs and Alcohol

    (a) Qualified individual with a disability. - For purposes of this
subchapter, the term ``qualified individual with a disability'' shall not
include any employee or applicant who is currently engaging in the illegal
use of drugs, when the covered entity acts on the basis of such use. 

   (b) Rules of construction. - Nothing in subsection (a) of this section
shall be construed to exclude as a qualified individual with a disability
an individual who-
     (1) has successfully completed a supervised drug rehabilitation
program and is no longer engaging in the illegal use of drugs, or has
otherwise been rehabilitated successfully and is no longer engaging in
such use; 
     (2) is participating in a supervised rehabilitation program and is
no longer engaging in such use; or
     (3) is erroneously regarded as engaging in such use, but is not
engaging in such use;except that it shall not be a violation of this
chapter for a covered entity to adopt or administer reasonable policies or
procedures, including but not limited to drug testing, designed to ensure
that an individual described in paragraph (1) or (2) is no longer engaging
in the illegal use of drugs. 
***
    (d) Drug testing. -
     (1) In general. - For purposes of this subchapter, a test to
determine the illegal use of drugs shall not be considered a medical
examination. 
***

SECTION 12115: Posting Notices

    Every employer, employment agency, labor organization, or joint
labor­management committee covered under this subchapter shall post
notices in an accessible format to applicants, employees, and members
describing the applicable provisions of this chapter, in the manner
prescribed by section 2000e-10 of this title.   



[ Disclaimer: Only portions of the laws are reprinted above; the text has been edited for content. The text is representative (not exhaustive), to provide the reader with a general understanding of employment discrimination law. Additional reading can be found at the main US AND CALIFORNIA EMPLOYMENT LAW webpage.]

______________________________________________

Disclaimer: The information on this website is provided to assist the general public.
It does not consitute legal advice or create an attorney-client relationship.

Copyright (c) 1997 Joe DiPaola