The Employment Attorneys at Miller Wilmers APC, located in Los Angeles, CA, have seen an uprise in unfair terminations as Companies prepare for the worst in the midst of the current recession. While employers feel the best way to cut costs is through labor, the manner in which they do so can be suspect. We have previously written about the correlation between recessions and age discrimination, but the same is true for all manners of discrimination. When looking to cut labor costs, employers often take the opportunity to remove employees that otherwise shake the status quo. That is, employees who are reporting complaints of unfair treatment; or in the disability context, employees who require accommodations that can be seen as added costs by the employer to keep that person employed. This is so well-known in the legal community, that many firms now refer to this phenomenon as "recessionary discrimination." 

Disability and Employment Statistics in the United States

According to the 2000 U.S. Census, one in five Americans is considered disabled. At the time, the overall unemployment rate was 10%, while the disabled American unemployment rate was a staggering 14%. In 2021, the Bureau of Labor Statistics found that 63.7% of Americans without a disability were gainfully employed, while 19.1% of people with a disability were. These numbers are shielded behind the employment statistics calculation for the unemployment rate, which only consider those individuals actively looking for work but are unable to find work. This same report showed that only 5.1% of those Americans without a disability, seeking work, were unemployed while the unemployment rate nearly doubles to 10.1% for those with a disability. 

Additionally, disabled workers are more likely to be found working part-time (29%) versus their able-bodied counterparts (16%). The Journal of Vocational Rehabilitation (33 (2010) 193-202) reviewed the impact the great recession of 2008-2010 had on the employment of disabled workers. The study found that the unemployment rate for persons with disabilities, when categorized by gender, education level, and experience level, all nearly doubled in unemployment compared to their able-bodies peers. When asked the reason for their inability to get a job, 32.5% of disabled American's reported their disability as the reason for their failure to obtain employment, whereas transportation and labor demands constituted only 3.7%, and 17.3% respectively. 

Definition of Disability

In California, the Fair Employment and Housing Act constitutes which injuries would qualify as a disability, and what employers must do to accommodate those individuals with disabilities. California Law describes three forms of disability: (1) physical disability; (2) mental disability; and (3) medical conditions. 

Physical Disability

Physical disabilities are defined to include, without limitations, any physiological disease, disorder, condition, cosmetic disfigurement, or anatomical loss that both (1) affects one or more body systems; and (2) limits a major life activity.  Major life activities are any physical, mental and social activity to include working.

Mental Disability

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

Medical Conditions

A substantially broad term that includes cancer-related conditions and genetic characteristics. This encompasses any health impairment related to or associated with a diagnosis of cancer or a record or history of cancer; genes or chromosomes or inherited characteristics that are known to be a cause of a disease or disorder or are associated with a statistically increased the risk of developing a disease or disorder. 

Reasonable Accommodations

When an employer is aware of the disability of one of its employees, they are required to provide reasonable accommodations. Additionally, an employer cannot deny employment or continued employment, simply because the employee requires an accommodation. The employer must remain sensitive to this obligation and must not deny any disabled employee an accommodation except for a handful of reasons. First, if the accommodation would cause an "undue hardship," meaning the nature and cost of the accommodation needed and the overall financial resources of the employer make such an accommodation fiscally damaging. This is broken down to the overall financial resources of the employer and the overall size of its business with respect to the number of its employees, and number, type and location of facilities. Further, the type of operations of the employer and function of the workforce, with the geographic separateness, administrative, or fiscal relationship of the facility taken into consideration. 

The hurdles an employer must overcome to avoid providing a reasonable accommodation are difficult to say the least. Finally, if such an accommodation is possible, but the accommodation would create an immediate threat of harm to the employee or others, the employer can deny an accommodation. 

Some examples of reasonable accommodations include (1) making facilities used by employees readily accessible to use by a disabled person; (2) restructuring jobs; (3) making reassignments or transfers; (4) offering part time or modified work schedules; (5) acquiring or modifying equipment or devices; (6) providing readers or interpreters; (7) making structural alterations of buildings; (8) providing a leave of absence and many other creative solutions to deal with an employee's need for an accommodation. In some specific circumstances, the accommodation could simply be providing a different chair. 

Disability Discrimination - What Must be Proved

To prove discrimination, plaintiffs must provide evidence that they: (a) are a member of a protected class, (b) are qualified for the position at issue, (c) suffered an adverse employment action, and (d) the employer treated similarly situated employees outside of the protected class more favorably (or some other circumstance that suggests a discriminatory motive). (McDonnell Douglas Corp. v. Green (1973) 411 U.S. 792; Cucuzza v. City of Santa Clara (2002) 104 Cal.App.4th 1031, 1038; Guz v. Bechtel National, Inc. (2000) 24 Cal.4th 317, 355.)

What does this mean? First, the employee must prove that they are, in fact disabled. The employee must prove they are qualified for the position, meaning even with the disability or at least with a reasonable accommodation they could perform the material job duties required of them. For discrimination to occur, there must be some form of "adverse employment action." This can be a suspension, termination, write-ups, reduction in scheduling or any other action which altered the working conditions of the job. The Plaintiff must be able to show that the employer treated non-disabled workers with some form of favorable treatment. This can also mean the failure to discipline non-disabled workers for the same issues. 

Contact Miller Wilmers APC for a Free Consultation

We have seen an uprise in age and disability discrimination in recent months and anticipate this issue getting worse as the economy continues to fall deeper into recession. While companies will certainly be laying off employees to cut their labor costs, they must do so in a manner that is fair and non-discriminatory. If you believe you have been subjected to disability discrimination, contact our office for a free consultation.