What qualifies as a “disability” under the Fair Employment and Housing Act?

The California state legislature, through its enactment of the Fair Employment and Housing Act (“FEHA”), has stated its clear intent that “physical disability” be construed so that employees are protected from discrimination due to any physiological condition that affects one of the body systems. See Gov. Code §12926(k)(1).

For a claim to be recognized by the courts, not only does the employee have to show a physical disability, but also that the physical disability limits a major life activity.

A physical condition or impairment “limits” a major life activity if it “makes the achievement of the major life activity more difficult.” Gov. Code §12926(k)(1)(B)(ii). Working is considered a major life activity “regardless of whether the actual or perceived working limitation implicates a particular employment or a class or a broad range of employments.” Gov. Code §12926.1(c).

In order to support a prima facie case of disability discrimination, an employee will need to show that she was a member of a protected class, she was otherwise qualified to do her job, she suffered an adverse employment action, such as demotion or discharge, and the action occurred under circumstances suggesting a discriminatory motive. Guz, 24 Cal. 4th at 356. Deschene v.

Pinole Point Steel Co. (1999) 76 Cal. App. 4th 33, 44.

As the courts clearly point out, this is only a minimal evidentiary burden. The employee need only offer evidence giving rise to an inference of unlawful discrimination. St. Mary’s Honor Center v. Hicks (1993) 509 U.S. 502, 506. The factfinder must look at the totality of the circumstances to determine if the defendant has intentionally discriminated. The employee must only establish that part of the employer’s motive was discriminatory.

Once the employee has established her prima facie case, the burden shifts to the employer to articulate a “legitimate nondiscriminatory reason” for the adverse employment action. The employee can establish pretext either indirectly, by showing that the employer’s proffered explanation is “unworthy of credence,” or directly, by showing that unlawful discrimination more likely motivated the employer. Where direct evidence is not available, an employee may come forward with circumstantial evidence that tends to show that the employer’s proffered motives were not the actual motives because they are inconsistent or otherwise not

believable. In appropriate circumstances, the jury can reasonably infer from the falsity of the explanation that the employer is dissembling to cover up a discriminatory purpose. Such an inference is consistent with the general principle of evidence law that the jury is entitled to consider a party’s dishonesty about a material fact as “affirmative evidence of guilt.”

Thus, a plaintiff's prima facie case, combined with sufficient evidence to find that the employer’s asserted justification is false, may permit the trier of fact to conclude that the employer unlawfully discriminated.

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