While the new OSHA ergonomics rules have employers´ groups filing lawsuits, the California Fair Employment and Housing Act (FEHA) has been recently amended to expand the definition of disabled beyond that currently applied by the Americans With Disabilities Act (ADA).
Assembly Bill 2222 was signed by Governor Gray Davis on September 30th, 2000 and came into effect on January 1st, 2001. Â In the past few days lawyers who represent employers have begun to voice their concerns. Â California is now out of step with the U.S. Supreme Court´s jurisprudence that in three cases last year interpreted the ADA´s definition of disability. Â As well, the Equal Employment Opportunity Commission´s (EEOC) published guidelines (available on their website - www.eeoc.gov) support the Supreme Court´s interpretation.
The key difference from the ADA is in the definition of "disability". Â According to the federal law a disability is a condition that "substantially limits" a major life activity. Â In the new California state law, workers just need to prove that the condition "makes the achievement of a major life activity difficult".
Another key difference is the issue of mitigating measures. Â According to the Supreme Court an individual is not considered disabled if the condition can be corrected or mitigated. Â In Sutton v. United Airlines, Inc., 119 S.C. 2139 (1999) the Supreme Court decided that two myopic pilots, who were not hired by the company, were not victims of disability discrimination because they could correct their vision with glasses or contact lenses. This is considered by some to be bad law because the courts defined them as not disabled when they wore their corrective lenses but the employer was allowed to reject their application based upon their uncorrected vision. Under the California law workers will be protected from discrimination even though they have corrected the condition with glasses, hearing aids or by taking medication.
Another key issue in Sutton v. United Airlines was the Supreme Court´s interpretation of a "major life activity". Â The Court decided that that the two pilots, who were employed as commercial pilots when they applied for positions with United Airlines, functioned as well with their corrective lenses as someone without a similar impairment. Â They therefore were not considered to be substantially limited in a major life activity.
The definition of limiting physical and mental life activities has been expanded. Â The new California law enlarges the category of metal disabilities to include emotional and learning disabilities. Medical conditions that were not previously protected include cancer, HIV/AIDS, diabetes, hepatitis, bipolar disorders, epilepsy, heart disease and clinical depression. Â Discrimination based on genetic or inheritable conditions is also not allowed.
The new law also states that its definition of a disability takes precedence over the U.S. Supreme Court´s interpretation of the ADA.
According to attorney David Kadue of the law firm Seyfarth Shaw, 80% of disability discrimination suits are dismissed by the courts. This is expected to change with the new legislation. Â Such a high percentage of summary judgements in favor of employers should point to an imbalance of power that could change with these amendments to the FEHA. On the other hand, instead of opening a floodgate of discrimination suits, the legislation may challenge employers to accommodate the needs of employees and job applicants.