Disability Discrimination in the Workplace: What is a Disability?

When thinking about disability discrimination, and accommodation, it is important to understand what qualifies as a protected disability.

California law provides for significant disability protections in the workplace.

When disability discrimination and retaliation in the workplace do occur, they often take the form of either failure to accommodate a disability, or retaliation against an employee that requires disability accommodations.

What constitutes a protected disability under California law?

The good news for California employees is that our state law recognizes a broad range of physical and mental conditions that qualify as protected disabilities for most workplaces that employ five or more people. As explained in detail below, conditions that limit a major life activity are generally treated as protected disabilities. Moreover, work itself is considered a major life activity under this analysis. 

Therefore, conditions that limit the ability of employees to perform their own jobs are often protected disabilities. Moreover, employees that have work related injuries that limit their ability to work oftentimes have protected disabilities for the same reason.

What does this mean for disability protection and disability accommodation?

Because California law protects such a broad range of conditions as protected disabilities, employees cannot be discriminated against for having these conditions, employers are frequently required to provide workers with disability accommodations (and leave from work itself frequently qualifies as a protected disability accommodation), and employees cannot be retaliated against for requesting or requiring disability accommodations.  

What constitutes a protected disability, and what law are we talking about?

Under California law, disability discrimination and retaliation in the workplace are governed by the Fair Employment and Housing Act (the “FEHA”).

Under the FEHA, a protected disability can be either a:

• “Physical Disability”,
• “Medical Condition”, or
• “Mental Disability”.

These are defined as follows:

• “Physical Disability” is defined in Cal. Government Code § 12926(m).

For practical purposes, under California law, a physical disability is a health condition that is significant enough to limit a major life activity (which includes work itself).

These terms are defined more specifically in Government Code § 12926(m) as:

1. A physiological disease, disorder, condition, cosmetic disfigurement, or anatomical loss that does both of the following:
   1. That affects one or more of the following body systems: neurological, immunological, musculoskeletal, special sense organs, respiratory, including speech organs, cardiovascular, reproductive, digestive, genitourinary, hemic and lymphatic, skin, and endocrine; and
   2. Limits a major life activity (this is broadly construed and includes physical, mental, and social activities and working)

In my practice, I have worked on cases with a wide variety of physical disabilities, including many orthopedic conditions, chronic migraines, stroke related conditions, organ transplant, alcohol dependency, and pregnancy related conditions. 

Indeed, the scope of what can constitute a disability is very broad. For instance, under California law the physical disability only has to “limit”, not “substantially limit” the life activity. This is a distinction from federal law, and the intention is to have even broader coverage under our state law. (Cal.Gov.Code § 12926.1(c)).

• “Medical Condition” is defined in Cal. Government Code § 12926(i).

While the category “medical condition” sounds very broad, it is actually defined relatively narrowly, regarding cancer and certain genetic characteristics. 

Under Cal. Government Code § 12926(i), “medical condition” is defined as:

• Any health impairment related to or associated with a diagnosis of cancer or a record or history of cancer.
• Certain genetic characteristics regarding genes or chromosomes that cause or create risk for certain diseases or disorders, or inherited characteristics that cause or create risk for certain diseases or disorders. (For more detail on this issue see Cal. Government Code § 12926(i)(2).
• “Mental Disability” is defined in Government Code § 12926(j).

A mental disability under the FEHA is defined as having any mental or psychological disorder or condition, such as intellectual disability, organic brain syndrome, emotional or mental illness, or specific learning disabilities, that limits a major life activity. 

It also includes any other mental or psychological disorder or condition not described above that requires special education or related services.

However, having a protected mental disability does not include sexual behavior disorders, compulsive gambling, kleptomania, pyromania, or psychoactive substance use disorders resulting from the current unlawful use of controlled substances or other drugs.

Nevertheless, medical treatment for addiction can entitle certain employees to protected leave under the California Family Rights Act (CFRA). 

Important takeaways for California employees

California employees should know their rights. If you believe you have been discriminated against or retaliated against based on a disability, or if an employer has refused to accommodate your disability, you can contact employment law attorney Michael Velarde.