Legal Rights of Persons With Disabilities - Ossh.com

$ Discrimination based on physical handicap or medical condition against potential employees on
public works projects is prohibited. (Lab. Code, ' 1735.) (Some specific exceptions to this policy
are set forth in Gov. Code, ' 12940 et seq.)
II.
FEDERAL LAW
A. The Americans With Disabilities Act
The Americans With Disabilities Act (ADA) (42 U.S.C. ' 12101, et seq.) is the federal law
equivalent of the FEHA. Title I of the ADA prohibits discrimination on the basis of disability by
employers that employ 15 or more employees with respect to hiring and all terms and conditions of
employment. (42 U.S.C. ' 12111(5)(A).) Title I does not apply to the federal government. (42 U.S.C. '
12111(5)(B).)
The discrimination prohibited by the ADA includes segregating, limiting or classifying any job
applicant or employee because of a disability in a manner adversely affecting the individual's status or
opportunities. (42 U.S.C. ' 12112(a) & (b).) Discrimination can include failing to make a reasonable
accommodation for an individual's physical or mental impairments, or using employment tests and
standards that tend to screen out persons with disabilities, unless such tests or standards are shown to be
job-related or consistent with business necessity. (42 U.S.C. '' 12112 and 12113.)
The ADA prohibits discrimination or retaliation against anyone who has opposed acts or practices
unlawful under the ADA, has asserted a claim under the ADA, or has assisted in the assertion of such a
claim by acting as a witness or aiding in the investigation of ADA violations. (42 U.S.C.
' 12203.)
1. Definition of Disability
The ADA protects Aqualified persons@ with a disability. The definition of Adisability@ under the
ADA includes both physical and mental impairments that substantially limit one or more of the major life
activities, a record of such impairments, or being regarded as having such impairments.
(42 U.S.C. ' 12102(2).) In determining whether an individual is substantially limited in one or more major
life activities, employers may consider the effect of any mitigating measures
For purposes of the ADA's employment protections, employees or applicants currently engaged in
the illegal use of drugs are specifically excluded. (42 U.S.C. ' 12114.) Additionally, the definition of
disability does not include homosexuality and bisexuality, transvestism, transsexualism, pedophilia,
exhibitionism, voyeurism, gender identity disorders not resulting from physical impairments or other sexual
behavior disorders, compulsive gambling, kleptomania, or pyromania. (42 U.S.C. ' 12211.)
2. Employers Must Reasonably Accommodate Disabilities
The ADA prohibits covered employers from failing to provide reasonable accommodation to the
known physical or mental limitations of an otherwise qualified individual, unless the employers can
demonstrate that such accommodation would impose an undue hardship. (42 U.S.C. ' 12112(b)(5)(A) and
(B).)
a. Reasonable Accommodation
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