What employment practices are prohibited under Fair Employment and Housing Act (FEHA) regarding disability discrimination?

Fair Employment and Housing Act (FEHA) establishes a comprehensive framework prohibiting various forms of disability discrimination in employment, creating multiple causes of action that address different aspects of discriminatory treatment. These prohibitions reflect California’s commitment to ensuring that disability never serves as a basis for adverse employment decisions or workplace mistreatment. 

Core Discrimination Prohibitions Under Government Code Section 12940(a): Fair Employment and Housing Act (FEHA) makes it unlawful for employers to base employment decisions on an individual’s disability, including refusing to hire or employ a person, refusing to select a person for training programs leading to employment, barring or discharging a person from employment or training programs, or discriminating in compensation or terms, conditions, or privileges of employment.  

The Act prohibits both intentionally discriminatory acts (disparate treatment discrimination) and facially neutral employment practices or policies that have a disproportionate effect on disabled employees (disparate impact discrimination). For disparate treatment claims, plaintiffs must show that the employer knew or should have known that the plaintiff had a disability.  

Prima Facie Case Elements: To establish disability discrimination under FEHA, plaintiffs must demonstrate they have a disability covered by the Act, are otherwise qualified to do the job with or without reasonable accommodation, and were subjected to an adverse employment action because of the disability. This framework ensures that protection extends only to qualified individuals while recognizing that qualification may depend on reasonable accommodation. 

Pre-Employment Practice Restrictions: FEHA specifically addresses discriminatory practices in the hiring process. Employers engaging in recruiting activities must consider individuals on an equal basis and cannot advertise or publicize employment benefits in ways that discourage individuals with disabilities more than those without disabilities.  

Employers must accept applications from disabled individuals and consider them equally with applications from non-disabled persons. Additionally, employers must make reasonable accommodation to disabled individuals’ needs in interviewing situations, such as providing interpreters for the hearing-impaired or scheduling interviews in wheelchair-accessible rooms.  

Medical Examinations and Inquiries: Government Code Section 12940(e) and (f) establish strict limitations on medical examinations and disability-related inquiries. Employers may not conduct medical or psychological examinations of applicants or current employees, or make inquiries regarding the existence, nature, or severity of mental or physical disabilities, subject to specific exceptions.  

Pre-employment inquiries that are prohibited include asking “Do you have any particular disabilities?”, “Have you ever been treated for diseases or conditions?” (unless job-related), questions about workers’ compensation claims, prescription medications, job-related injuries, medical leave, or hospitalizations.  

However, employers may inquire into job applicants’ ability to perform job-related functions and may make limited inquiries regarding accommodation when applicants request it or have obvious disabilities requiring accommodation.  

Post-Offer Medical Examinations: After making an actual job offer and before employment duties commence, employers may require medical or psychological inquiries and examinations if they are job-related, consistent with business necessity, and required of all entering employees in the same job classification. Results must be kept confidential, and job offers may be withdrawn based on examination results only if the applicant cannot perform essential job duties or would endanger health or safety even with reasonable accommodation.  

Accommodation and Interactive Process Violations: FEHA makes it unlawful to fail to provide reasonable accommodation for known disabilities unless accommodation would cause undue hardship. Separately, employers must engage in a “timely, good faith interactive process” to determine effective reasonable accommodations, and failure to do so constitutes an independent violation.  

Harassment Prohibitions: Government Code Section 12940(j) makes it unlawful for employers or others to harass employees or applicants because of their medical condition, physical disability, or mental disability. Harassment need not result in loss of tangible job benefits to be actionable. Employers must take “all reasonable steps to prevent harassment from occurring” and face strict liability for harassment by supervisors.  

To be actionable, disability-based harassment must be sufficiently severe or pervasive to alter employment conditions and create a hostile working environment, showing “a concerted pattern of harassment of a repeated, routine or a generalized nature” rather than occasional, isolated, sporadic, or trivial acts.  

Retaliation Prohibitions: Government Code Section 12940(h) prohibits employers from retaliating against individuals who oppose conduct forbidden by FEHA, file complaints, or testify or assist in proceedings regarding disability discrimination claims. Additionally, employers may not retaliate against employees for requesting reasonable accommodation for disabilities, regardless of whether accommodation was granted.  

Health Insurance and Benefits: Discrimination in “terms or conditions of employment” includes fringe benefits such as health insurance. However, it is not discriminatory to provide insurance that excludes certain medical conditions if such exclusions apply uniformly—health insurance plans providing the same coverage to all employees “cannot be discriminatory.”  

Genetic Testing Prohibitions: FEHA specifically prohibits subjecting employees or applicants to tests for the presence of any “genetic characteristic,” recognizing the special privacy concerns and potential for discrimination based on genetic information.  

Aiding and Abetting: Government Code Section 12940(i) makes it unlawful to “aid, abet, incite, compel, or coerce” unlawful employment practices or attempt to do so, ensuring that liability extends beyond direct perpetrators to those who facilitate discrimination.