Employment

Nationwide, over 25% of working age adults with epilepsy are unemployed. Of those unemployed, 64% feel they are unemployed as a direct result of their epilepsy.

In recent years, court decisions have weakened federal legislation designed to protect people with disabilities from job discrimination. California residents receive greater protection from the state anti-discrimination laws administered by the State Department of Fair Employment and Housing as they tend to be more inclusive of the kind of claims brought forward by people with epilepsy.

The following information about state laws that protect against discrimination in the workplace is reprinted from the California Department of Fair Employment and Housing website at www.dfeh.ca.gov:

The California Department of Fair Employment and Housing (DFEH) enforces four laws:

Fair Employment & Housing Act (FEHA)

This law provides protection from harassment or discrimination in employment because of age (40 and over), ancestry, color, creed, denial of family and medical care leave, disability (mental and physical) including HIV and AIDS, marital status, medical condition (cancer and genetic characteristics), national origin, race, religion, sex, and sexual orientation.

The Fair Employment and Housing Act specifically:

• Prohibits discrimination in all aspects of employment including hiring, termination and terms and conditions.
• Prohibits harassment of employees or applicants and requires employers to take all reasonable steps to prevent harassment from occurring.
• Requires that all employers provide information to each of their employees describing the forms of sexual harassment, its illegality, the internal and external complaint processes and legal remedies.
• Requires employers to reasonably accommodate employees or job applicants with disabilities in order to enable them to perform the essential functions of the job.
• Requires employers to provide leaves of up to four months to employees disabled because of pregnancy or childbirth.
• Requires an employer to provide reasonable accommodations requested by an employee, with the advice of her health care provider, related to her pregnancy, childbirth, or related medical conditions.
• Requires employers of 50 or more persons to allow eligible employees to take up to 12 weeks leave in a 12-month period for the birth of a child, the placement of a child for adoption or foster care, for an employee's own serious health condition, or to care for a parent, spouse, or child with a serious health condition. (Employers are required to post a notice informing employees of their family and medical leave rights.)
• Requires employment agencies to serve all applicants equally; to refuse discriminatory job orders; to refrain from prohibited pre-employment inquiries or advertising.
• Prohibits discrimination by unions in membership or employment referrals.
• Prohibits retaliation against any person who has filed a complaint with the Department, participated in a Department investigation or opposed any activity prohibited by the Act.

The law provides for a variety of remedies, which may include:

• Hiring
• Back Pay
• Promotion
• Reinstatement
• Cease and Desist Orders
• Damages for Emotional Distress
• Reasonable Attorneys Fees and Costs
• Expert Witness Fees
• Administrative Fines and Court Ordered Punitive Damages

California Family Rights Act (CFRA)

This law was established to ensure secure leave rights for: the birth of a child for purposes of bonding, the placement of a child in the employee's family for adoption or foster care, the serious health condition of the employee's child, parent, or spouse, or the employee's own serious health condition.

Unruh Civil Rights Act

This law provides protection from discrimination by all business establishments in California, including housing and public accommodations, because of: age, ancestry, color, disability, national origin, race, religion, sex, or sexual orientation.

Ralph Civil Rights Act

This law provides protection from hate crimes. It prohibits violence or threats of violence based on: age, ancestry, color, disability, national origin, political affiliation, position in a labor dispute, race, religion, sex, or sexual orientation.

Disability Discrimination in Employment

In general, California law prohibits discrimination against people with disabilities. An employer who discriminates against a person because of his/her disability may do so only if the employer can demonstrate that:

• The person is unable to perform the essential functions of the job; and that no reasonable accommodation exists that would enable the person to perform the essential functions of the job
• The person would create an imminent and substantial danger to himself/herself or a substantial danger to others by performing the job; and that no reasonable accommodation can be made to remove or reduce the danger.

The following two reasons are not legally acceptable excuses for discrimination:

• There is a possibility of future harm to the person or to others
• That employing individuals with a disability will cause an employer's insurance rates to rise

Persons who believe they have experienced employment discrimination may file a DFEH complaint. Complaints must be filed within one year from the date of the alleged discrimination. Persons wishing to file a lawsuit directly in court must obtain a "right-to-sue" from DFEH.

Reasonable Accommodation in Employment

When an employee has a disability, the employer must explore all possibilities of reasonable accommodation prior to rejecting the person for a job or making any employment-related decision. An accommodation is reasonable if it does not impose an undue hardship on the employer's business.

Reasonable accommodation can include, but is not limited to, the following:

• Changing the job duties
• Changing the work shift
• Providing leave for medical care
• Accommodating work schedules
• Relocating the work area
• Providing mechanical or electrical aids

An employer may obtain help from government agencies and outside experts to determine whether accommodation is possible. Disabled employees may have separate rights to unpaid leave under the Federal Family and Medical Leave Act or the State Family Rights Act.

Pre-Employment Inquiries

When interviewing job applicants, employers may not ask (verbally or on an employment application) questions about the applicant's health or medical history. Employers may ask about an applicant's ability to perform specific tasks. Also, employers may not inquire whether the applicant has ever filed a Workers' Compensation claim.

Independent Medical Opinion

If an employer decides not to hire or promote an applicant because of his/her disability, then the employer must allow the applicant the opportunity to submit an independent medical opinion. Failure to allow the submission of an independent medical opinion may be a separate violation of the law.

Medical Evaluation

California disabilities law restricts the use of a job applicant's medical information.

Under the Fair Employment and Housing Act, medical examinations of applicants are only allowed after a conditional job offer has been made. Post-offer medical examinations are permissible only where all entering employees in similar positions are required to submit to such exams and the results are treated as confidential medical records and maintained on separate forms. In addition, pursuant to Government Code section 12940, subdivision (d), no post-offer pre-employment inquiry is permitted unless it is directly related to and pertinent to the position being applied for or directly related to whether an individual would endanger himself/herself or others.

Persons must not be excluded from a job because of a generalization about any disability. Each person must be judged solely on whether his/her particular medical history and condition presently prevents him/her from performing the job safely and efficiently. Any medical standard or employment policy which automatically excludes entire groups of people (such as all people with high blood pressure, diabetes, AIDS, or back problems) is usually improper.

It is further an unlawful employment practice for an employer or other covered entity to subject, directly or indirectly, any employee, applicant, or other person to a test for the presence of a genetic characteristic.

Questions and Answers About Employment Discrimination

What are the time limits for filing a complaint of employment discrimination?

A complaint of employment discrimination must be filed within one year from the date that the alleged discriminatory act occurred.

How does a person file a complaint of employment discrimination?

To file a complaint of employment discrimination, call (800) 884-1684 or (916) 227-0551 or TTY: (800) 700-2320. If the matter falls within the Department's jurisdiction, you, or the person you represent, will be given an appointment for an interview at the nearest DFEH office.

How does the Department conduct an investigation?

The Department is a neutral fact-finding agency. Department staff conduct impartial investigations in which records are reviewed and relevant witnesses are interviewed. An investigation may be conducted on site and/or through telephone interviews. The Department has the authority to take depositions, issue subpoenas and interrogatories and seek Temporary Restraining Orders during the course of its investigation. All evidence gathered is analyzed to determine if a violation of the Fair Employment and Housing Act has occurred. In making its determination, the Department considers evidence from both sides as well as from any neutral parties the Department may have contacted.

How long does it take the Department to conduct an investigation?

The Department has up to one year from the date a complaint is filed in which to complete an investigation and issue an accusation for public hearing if it is justified.

What remedies are available to persons who file complaints of employment discrimination?

The remedies available for employment discrimination include:

• Back pay
• Hiring
• Promotion
• Reinstatement
• Out-of-pocket expenses
• Front pay
• Policy changes
• Training
• Reasonable accommodation
• Affirmative relief
• Actual damages, including damages for emotional distress

In addition to the above, the Fair Employment and Housing Commission may order administrative fines against private employers. These administrative fines combined with any damages awarded for emotional distress cannot exceed $150,000 per aggrieved person per employer. If an individual decides to pursue his or her case in a private lawsuit, the remedies are identical with two exceptions: there is no limit on the amount of emotional distress damages and instead of administrative fines, unlimited punitive damages may be awarded. Remedies may also include the payment of attorney's fees and other court costs.

Does the Department represent Complainants?

During the investigation, the Department acts as a neutral fact-finder, gathering evidence to determine whether the Complainants allegations can be proven. The Department does not represent either the Complainant nor the Respondent. If the investigation establishes that there is evidence to support the Complainants allegations, and the parties do not reach a settlement, the case is forwarded to the Department's Legal Division to review for potential litigation.

The Department has a staff of attorneys who prepare and litigate cases before the Fair Employment and Housing Commission and in court. When the Department decides to litigate a case, it issues an accusation or files a civil complaint in the name of the Department of Fair Employment and Housing against the employer. The Department attorneys represent the Department, not the individual Complainant. Though the assigned Department attorney is not the Complainants personal legal advisor, the Complainants interests are paramount in the litigation, and the Complainant is given 100% of any remedies recovered, with the exception of administrative fines. The Department does not charge attorney fees, expert witness fees, nor does it take a percentage of any award or settlement. In the event that administrative fines are awarded, the employer pays those amounts directly to the State.

What are the advantages and disadvantages to litigating an employment discrimination case in court?

In employment cases, the Fair Employment and Housing Commission's (FEHC) authority to award damages for emotional distress and administrative fines is limited to a combination of $150,000 per Respondent. The FEHC has no authority to award punitive damages. Furthermore, the administrative fines are payable to the State General Fund, not the individual victim. In Superior Court, there is no limit on the amount of monetary damages a victim can be awarded. The administrative hearing process before the FEHC is a faster and less expensive process because pre-hearing law and motion practice and discovery is limited.

For what reasons may an employee take leave under the California Family Rights Act (CFRA)?

An eligible employee may take a job-protected leave of absence for the birth of a child for purposes of bonding, for placement of a child in the employee's family for adoption or foster care, for the serious health condition of the employee's child, parent, or spouse, and for the employee's own serious health condition. The leave may total up to 12 work weeks in a 12-month period. It does not need to be taken in one continuous period of time.

Can an employer fire a person who is out sick?

This depends on the nature of the illness and would have to be decided on a case-by-case basis. Generally, non-chronic illnesses of a short duration that do not have a long-term impact such as a cold or the flu, do not qualify as disabilities under the Fair Employment and Housing Act or the Federal Americans with Disabilities Act. However, if the temporary disability meets one of the definitions of disability contained in the Fair Employment and Housing Act, it may mean that being fired may be a violation of the law. In addition, if the illness is a "serious health condition" as defined under the California Family Rights Act and if the employee is eligible for leave under that law, the individual may be entitled to a job-protected leave up to 12 weeks in a 12-month period. 

 © 2000 State of California. Gray Davis, Governor.

The following information about federal laws that protect against discrimination in the workplace is reprinted from the U.S. Equal Employment Opportunity Commission website at www.eeoc.gov:

The ADA: Your Employment Rights as an Individual With a Disability

The Americans with Disabilities Act of 1990 (ADA) makes it unlawful to discriminate in employment against a qualified individual with a disability. The ADA also outlaws discrimination against individuals with disabilities in State and local government services, public accommodations, transportation and telecommunications. The following information explains the part of the ADA that prohibits job discrimination. This part of the law is enforced by the U.S. Equal Employment Opportunity Commission and State and local civil rights enforcement agencies that work with the Commission.

What Employers Are Covered by the ADA?

Job discrimination against people with disabilities is illegal if practiced by: private employers, state and local governments, employment agencies, labor organizations, and labor-management committees. The part of the ADA enforced by the EEOC outlaws job discrimination by: all employers, including State and local government employers, with 25 or more employees after July 26, 1992, and all employers, including State and local government employers, with 15 or more employees after July 26, 1994.

Another part of the ADA, enforced by the U.S. Department of Justice, prohibits discrimination in State and local government programs and activities, including discrimination by all State and local governments, regardless of the number of employees, after January 26, 1992. Because the ADA establishes overlapping responsibilities in both EEOC and DOJ for employment by State and local governments, the Federal enforcement effort is coordinated by EEOC and DOJ to avoid duplication in investigative and enforcement activities. In addition, since some private and governmental employers are already covered by nondiscrimination and affirmative action requirements under the Rehabilitation Act of 1973, EEOC, DOJ, and the Department of Labor similarly coordinate the enforcement effort under the ADA and the Rehabilitation Act.

Are You Protected by The ADA?

If you have a disability and are qualified to do a job, the ADA protects you from job discrimination on the basis of your disability. Under the ADA, you have a disability if you have a physical or mental impairment that substantially limits a major life activity. The ADA also protects you if you have a history of such a disability, or if an employer believes that you have such a disability, even if you don't. To be protected under the ADA, you must have, have a record of, or be regarded as having a substantial, as opposed to a minor, impairment. A substantial impairment is one that significantly limits or restricts a major life activity such as hearing, seeing, speaking, walking, breathing, performing manual tasks, caring for oneself, learning or working.

If you have a disability, you must also be qualified to perform the essential functions or duties of a job, with or without reasonable accommodation, in order to be protected from job discrimination by the ADA. This means two things. First, you must satisfy the employer's requirements for the job, such as education, employment experience, skills or licenses. Second, you must be able to perform the essential functions of the job with or without reasonable accommodation. Essential functions are the fundamental job duties that you must be able to perform on your own or with the help of a reasonable accommodation. An employer cannot refuse to hire you because your disability prevents you from performing duties that are not essential to the job.

Reasonable accommodation is any change or adjustment to a job or work environment that permits a qualified applicant or employee with a disability to participate in the job application process, to perform the essential functions of a job, or to enjoy benefits and privileges of employment equal to those enjoyed by employees without disabilities. For example, reasonable accommodation may include: providing or modifying equipment or devices, job restructuring, part-time or modified work schedules, reassignment to a vacant position, adjusting or modifying examinations, training materials, or policies, providing readers and interpreters, and making the workplace readily accessible to and usable by people with disabilities. An employer is required to provide a reasonable accommodation to a qualified applicant or employee with a disability unless the employer can show that the accommodation would be an undue hardship -- that is, that it would require significant difficulty or expense.

What Employment Practices are Covered?

The ADA makes it unlawful to discriminate in all employment practices such as:

• recruitment
• firing
• hiring
• training
• job assignments
• promotions
•  pay
• benefits
• lay off
• leave
• all other employment related activities

It is also unlawful for an employer to retaliate against you for asserting your rights under the ADA. The Act also protects you if you are a victim of discrimination because of your family, business, social or other relationship or association with an individual with a disability.

Can an Employer Require Medical Examinations or Ask Questions About a Disability?

If you are applying for a job, an employer cannot ask you if you are disabled or ask about the nature or severity of your disability. An employer can ask if you can perform the duties of the job with or without reasonable accommodation. An employer can also ask you to describe or to demonstrate how, with or without reasonable accommodation, you will perform the duties of the job.

An employer cannot require you to take a medical examination before you are offered a job. Following a job offer, an employer can condition the offer on your passing a required medical examination, but only if all entering employees for that job category have to take the examination. However, an employer cannot reject you because of information about your disability revealed by the medical examination, unless the reasons for rejection are job-related and necessary for the conduct of the employer's business. The employer cannot refuse to hire you because of your disability if you can perform the essential functions of the job with an accommodation.

Once you have been hired and started work, your employer cannot require that you take a medical examination or ask questions about your disability unless they are related to your job and necessary for the conduct of your employer's business. Your employer may conduct voluntary medical examinations that are part of an employee health program, and may provide medical information required by State workers' compensation laws to the agencies that administer such laws. The results of all medical examinations must be kept confidential, and maintained in separate medical files.

What Do I Do If I Think That I'm Being Discriminated Against?

If you think you have been discriminated against in employment on the basis of disability after July 26, 1992, you should contact the U.S. Equal Employment Opportunity Commission. A charge of discrimination generally must be filed within 180 days of the alleged discrimination. You may have up to 300 days to file a charge if there is a State or local law that provides relief for discrimination on the basis of disability. However, to protect your rights, it is best to contact EEOC promptly if discrimination is suspected. You may file a charge of discrimination on the basis of disability by contacting any EEOC field office, located in cities throughout the United States.

If you have been discriminated against, you are entitled to a remedy that will place you in the position you would have been in if the discrimination had never occurred. You may be entitled to hiring, promotion, reinstatement, back pay, or reasonable accommodation, including reassignment. You may also be entitled to attorney's fees. While the EEOC can only process ADA charges based on actions occurring on or after July 26, 1992, you may already be protected by State or local laws or by other current federal laws. EEOC field offices can refer you to the agencies that enforce those laws.

To contact the EEOC, look in your telephone directory under "U.S. Government." For information and instructions on reaching your local office, call: (800) 669-4000 (Voice) (800) 669-6820 (TDD).

Can I Get Additional ADA Information and Assistance?

The EEOC conducts an active technical assistance program to promote voluntary compliance with the ADA. This program is designed to help people with disabilities understand their rights and to help employers understand their responsibilities under the law. In January 1992, EEOC published a Technical Assistance Manual, providing practical application of legal requirements to specific employment activities, with a directory of resources to aid compliance. EEOC publishes other educational materials, provides training on the law for people with disabilities and for employers, and participates in meetings and training programs of other organizations. EEOC staff also will respond to individual requests for information and assistance.

The Commission's technical assistance program is separate and distinct from its enforcement responsibilities. Employers who seek information or assistance from the Commission will not be subject to any enforcement action because of such inquiries. The Commission also recognizes that differences and disputes about ADA requirements may arise between employers and people with disabilities as a result of misunderstandings. Such disputes frequently can be resolved more effectively through informal negotiation or mediation procedures, rather than through the formal enforcement process of the ADA. Accordingly, EEOC will encourage efforts of employers and individuals with disabilities to settle such differences through alternative methods of dispute resolution, providing that such efforts do not deprive any individual of legal rights provided by the statute.

Is an employer required to provide reasonable accommodation when I apply for a job?

Yes. Applicants, as well as employees, are entitled to reasonable accommodation. For example, an employer may be required to provide a sign language interpreter during a job interview for an applicant who is deaf or hearing impaired, unless to do so would impose an undue hardship.

Should I tell my employer that I have a disability?

If you think you will need a reasonable accommodation in order to participate in the application process or to perform essential job functions, you should inform the employer that an accommodation will be needed. Employers are required to provide reasonable accommodation only for the physical or mental limitations of a qualified individual with a disability of which they are aware. Generally, it is the responsibility of the employee to inform the employer that an accommodation is needed.

Do I have to pay for a needed reasonable accommodation?

No. The ADA requires that the employer provide the accommodation unless to do so would impose an undue hardship on the operation of the employer's business. If the cost of providing the needed accommodation would be an undue hardship, the employee must be given the choice of providing the accommodation or paying for the portion of the accommodation that causes the undue hardship.

Can an employer lower my salary or pay me less than other employees doing the same job because I need a reasonable accommodation?

No. An employer cannot make up the cost of providing a reasonable accommodation by lowering your salary or paying you less than other employees in similar positions.

Does an employer have to make non-work areas used by employees, such as cafeterias, lounges, or employer-provided transportation accessible to people with disabilities?

Yes. The requirement to provide reasonable accommodation covers all services, programs, and non-work facilities provided by the employer. If making an existing facility accessible would be an undue hardship, the employer must provide a comparable facility that will enable a person with a disability to enjoy benefits and privileges of employment similar to those enjoyed by other employees, unless to do so would be an undue hardship.

If an employer has several qualified applicants for a job, is the employer required to select a qualified applicant with a disability over other applicants without a disability?

No. The ADA does not require that an employer hire an applicant with a disability over other applicants because the person has a disability. The ADA only prohibits discrimination on the basis of disability. It makes it unlawful to refuse to hire a qualified applicant with a disability because he is disabled or because a reasonable accommodation is required to make it possible for this person to perform essential job functions.

Can an employer refuse to hire me because he believes that it would be unsafe, because of my disability, for me to work with certain machinery required to perform the essential functions of the job?

The ADA permits an employer to refuse to hire an individual if she poses a direct threat to the health or safety of herself or others. A direct threat means a significant risk of substantial harm. The determination that there is a direct threat must be based on objective, factual evidence regarding an individual's present ability to perform essential functions of a job. An employer cannot refuse to hire you because of a slightly increased risk or because of fears that there might be a significant risk sometime in the future. The employer must also consider whether a risk can be eliminated or reduced to an acceptable level with a reasonable accommodation.

Can an employer offer a health insurance policy that excludes coverage for pre-existing conditions?

Yes. The ADA does not affect pre-existing condition clauses contained in health insurance policies even though such clauses may adversely affect employees with disabilities more than other employees.

If the health insurance offered by my employer does not cover all of the medical expenses related to my disability, does the company have to obtain additional coverage for me?

No. The ADA only requires that an employer provide employees with disabilities equal access to whatever health insurance coverage is offered to other employees.

I think I was discriminated against because my wife is disabled. Can I file a charge with the EEOC?

Yes. The ADA makes it unlawful to discriminate against an individual, whether disabled or not, because of a relationship or association with an individual with a known disability.

For more specific information about ADA requirements affecting employment contact:

Equal Employment Opportunity Commission

1801 L Street, NW Washington, DC 20507

(800) 669-4000 (Voice), (800) 669-6820 (TDD)

For more specific information about ADA requirements affecting public accommodations and State and local government services contact:

Department of Justice

Office on the Americans with Disabilities Act

Civil Rights Division

P.O. Box 66118

Washington, DC 20035-6118

(202) 514-0301 (Voice) (202) 514-0381 (TDD) (202) 514-0383 (TDD)