How does Fair Employment and Housing Act (FEHA) differ from the Americans with Disabilities Act (ADA) in protecting disabled employees? 

Fair Employment and Housing Act (FEHA) provides significantly broader protections than the Americans with Disabilities Act (ADA) in numerous critical areas, reflecting California’s leadership in disability rights and its commitment to exceeding federal minimum standards. Government Code Section 12926.1(a) explicitly declares that the law of this state in the area of disabilities provides protections independent from those in the federal Americans with Disabilities Act and that although the federal act provides a floor of protection, this state’s law has always, even prior to passage of the federal act, afforded additional protections.  

Employer Size Coverage: One of the most significant differences lies in employer coverage thresholds. The Americans with Disabilities Act (ADA) applies only to employers with 15 or more employees, whereas Fair Employment and Housing Act (FEHA) applies to employers with five or more employees. This difference means that significantly more California workers enjoy protection from employment discrimination, as Fair Employment and Housing Act (FEHA) covers approximately three times as many employers as the Americans with Disabilities Act (ADA). 

Definition of Disability – Substantial vs. Limiting: A crucial distinction involves the standard for measuring disability. The Americans with Disabilities Act (ADA) requires that impairments substantially limit a major life activity, while Fair Employment and Housing Act (FEHA) requires only that the disability limit such activity. This distinction is intended to result in broader coverage under California law than under federal law. [1](1] 

This difference has practical significance for individuals with conditions that impact their lives but may not rise to the substantial limitation threshold. For example, individuals with short-term or temporary conditions may qualify for protection under Fair Employment and Housing Act (FEHA) though the same condition might not qualify under the Americans with Disabilities Act (ADA). However, mild conditions that have little or no residual effects and do not limit a major life activity are still excluded under Fair Employment and Housing Act (FEHA).  

Mitigating Measures Consideration: Under pre-2009 Americans with Disabilities Act (ADA) law, mitigating or corrective measures were relevant in determining whether a condition was disabling. Fair Employment and Housing Act (FEHA) explicitly provides that whether a condition limits a major life activity is determined without respect to any mitigating measures unless the measure itself limits a major life activity. The Legislature specifically stated this rule applies regardless of federal law under the Americans with Disabilities Act. 

Working as Major Life Activity: Fair Employment and Housing Act (FEHA) declares that working is a major life activity, regardless of whether the actual or perceived working limitation implicates a particular employment or a class or broad range of employments. Under pre-2009 Americans with Disabilities Act (ADA) law, an employee who couldn’t perform specific job requirements but could work in different positions was not substantially limited in working. Fair Employment and Housing Act’s (FEHA) approach means that exclusion from a single job with a single employer constitutes a limitation on working, making the California law much broader.  

Reasonable Accommodation Scope: Fair Employment and Housing Act (FEHA) imposes a broader duty of accommodation than the Americans with Disabilities Act (ADA). Notably, Fair Employment and Housing Act (FEHA) creates an affirmative duty for employers to provide reasonable accommodations even when employees haven’t specifically requested accommodation, if the employer is aware of the disability. This proactive approach contrasts with the Americans with Disabilities Act’s (ADA) generally reactive framework. 

Additionally, Fair Employment and Housing Act (FEHA) requires employers to reasonably accommodate applicants or employees whom they regard as disabled, even if the person is not actually disabled. The ADAAA now provides that employers need not provide reasonable accommodations to persons who are only regarded as disabled, creating another area where Fair Employment and Housing Act (FEHA) provides broader protection.  

Leave as Accommodation: While both laws recognize leave as a potential reasonable accommodation, Fair Employment and Housing Act (FEHA) provides no statutory limit on leave duration, stating that a disabled employee is entitled to a reasonable accommodation—which may include leave of no statutorily fixed duration—provided that such accommodation does not impose an undue hardship on the employer. This unlimited approach to leave accommodations represents a significant expansion beyond federal requirements. 

Interactive Process: While both laws require interactive processes, Fair Employment and Housing Act (FEHA) makes failure to engage in the interactive process a separate cause of action under Government Code Section 12940(n). Some California courts hold that Fair Employment and Housing Act (FEHA) allows an independent cause of action for failing to engage in the interactive process regardless of whether reasonable accommodation was possible, potentially providing broader protection than the Americans with Disabilities Act (ADA).  

Causation Standards: Recent federal law changes have created differences in causation standards. Americans with Disabilities Act (ADA) discrimination claims now require but for causation, meaning employees must show the employment action would not have occurred but for the disability. Fair Employment and Housing Act (FEHA) disability discrimination cases continue to apply the substantial motivating factor standard from Title VII, which can be easier for plaintiffs to prove in mixed-motive cases.  

Religious Employer Coverage: Fair Employment and Housing Act (FEHA) generally does not cover most religious employers, while the Americans with Disabilities Act (ADA) does cover them but grants certain protections. This represents one area where the Americans with Disabilities Act (ADA) potentially provides broader coverage than Fair Employment and Housing Act (FEHA). 

Perceived Impairment Coverage: The ADAAA prohibits discrimination based on perceived impairment regardless of whether it has or is perceived to have any disabling effect. Fair Employment and Housing Act’s (FEHA) comparable provision appears narrower, covering only perceived impairments that are disabling, potentially disabling, or perceived as disabling or potentially disabling. However, this broader federal definition may be incorporated by Government Code Section 12926.1(a), which makes the Americans with Disabilities Act (ADA) the floor of protection for disability claims.  

Specific Protected Conditions: Fair Employment and Housing Act (FEHA) specifically lists certain conditions as protected disabilities, including HIV/AIDS, hepatitis, epilepsy, diabetes, multiple sclerosis, and heart disease. While these conditions may be disabilities under the Americans with Disabilities Act (ADA), each Americans with Disabilities Act (ADA) claim must be evaluated case-by-case, whereas Fair Employment and Housing Act’s (FEHA)explicit inclusion provides clearer protection. 

Practical Implications: These differences mean that California employees often have stronger disability discrimination protections than their counterparts in other states. Practitioners should consider arguing that favorable federal decisions should be adopted under Fair Employment and Housing Act (FEHA) while avoiding adverse federal precedents where California law provides broader protection. 

Tags:

Americans with Disabilities Act (ADA), Fair Employment and Housing Act (FEHA)