California’s Disability Law Leaves the Americans with Disabilities Act (ADA) in the Dust

If you work in California and have a disability, you are in luck,  at least compared to workers in other states. California’s Fair Employment and Housing Act (FEHA) is one of the most protective disability discrimination laws in the country, and it exceeds federal law, the Americans with Disabilities Act (ADA), in nearly every important respect. The Legislature made this explicit in Government Code Section 12926.1(a), which states 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.

That is not lawyer rhetoric. The differences are real, and they matter. 

Smaller employers are covered. The Americans with Disabilities Act (ADA) only applies to employers with 15 or more employees. California’s Fair Employment and Housing Act (FEHA) kicks in at five. That means millions of California workers at small businesses have protections their counterparts elsewhere simply don’t. 

The definition of disability is broader. Under the Americans with Disabilities Act (ADA), an impairment must substantially limit a major life activity. California’s Fair Employment and Housing Act (FEHA) drops the word substantially,  it requires only that the impairment limit a major life activity. This is not a trivial distinction. It means people with conditions that affect their lives but fall short of the ADA’s higher threshold can still bring a claim in California. The Legislature intended this result. If your condition impacts your life, California wants to protect you. 

Mitigating measures don’t count against you. Under pre-2009 federal law, courts would look at whether corrective measures, medication, a prosthetic, for example, reduced the impact of your condition. Fair Employment and Housing Act (FEHA) explicitly rejects that approach. Whether you are disabled is determined without respect to any mitigating measures. The Legislature said this rule applies regardless of federal law under the Americans with Disabilities Act. The fact that you manage your condition well does not mean you lose your legal protection. 

Being excluded from one job is enough. Pre-2009 Americans with Disabilities Act (ADA) law held that if you could work somewhere else, even if not in your current job, you were not substantially limited in working. Fair Employment and Housing Act (FEHA) rejects this entirely. Under Fair Employment and Housing Act (FEHA), working is a major life activity, and being excluded from a single job with a single employer is enough to trigger protection. You should not have to prove you are unemployable across the board just to have your day in court. 

Employers must act, even without a request. Fair Employment and Housing Act (FEHA) imposes an affirmative duty on employers to provide reasonable accommodation even when an employee has not formally asked for one if the employer is aware of the disability. The Americans with Disabilities Act’s (ADA) framework is more reactive; it generally waits for the employee to ask. California law says employers cannot simply wait and do nothing when they know someone needs help. 

The accommodation duty extends to people who are only regarded as disabled. Under the federal Americans with Disabilities Act Amendments Act (“ADAAA”), employers need not accommodate employees who are only perceived as disabled. Fair Employment and Housing Act (FEHA) goes further,  it requires accommodation even for people who are not actually disabled, as long as the employer regards them as disabled. That is a significant expansion. 

Leave has no fixed limit. Both laws recognize that a leave of absence can be a reasonable accommodation. But the Americans with Disabilities Act (ADA) does not explicitly address duration, while Fair Employment and Housing Act (FEHA) has been interpreted to mean there is no statutory cap. California courts have held 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. How long is long enough? It depends on the circumstances. But the employer cannot simply cut you off because a certain number of weeks have elapsed. 

Failure to engage in the interactive process is its own violation. Under Fair Employment and Housing Act (FEHA), Government Code Section 12940(n), an employer’s failure to engage in the interactive process is an independent cause of action, separate from whether an accommodation was even possible. Some California courts have held that an employee can win on this claim even if it turns out no accommodation existed. The Americans with Disabilities Act (ADA) does not go that far. 

Causation is easier to prove. Americans with Disabilities Act (ADA) claims now require but for causation,  meaning the disability must have been the reason the employer acted. Fair Employment and Housing Act (FEHA) uses the substantial motivating factor standard. In a mixed-motive case, where the employer had both lawful and unlawful reasons for its decision, Fair Employment and Housing Act (FEHA) makes it easier for the employee to prevail. 

Specific conditions are explicitly protected. Fair Employment and Housing Act (FEHA) lists by name conditions including HIV/AIDS, hepatitis, epilepsy, diabetes, multiple sclerosis, and heart disease. Under the ADA, each claim must be evaluated case by case.  Fair Employment and Housing Act’s (FEHA) explicit inclusion of these conditions removes uncertainty and provides clearer protection to those who have them. 

The bottom line is this: if you work in California and your employer has discriminated against you because of a disability, you almost certainly have stronger rights than you would anywhere else in the country. The Legislature has worked hard to make that true, and the courts have generally backed it up. Before you assume your claim is too small, too complicated, or not worth pursuing, talk to an employment lawyer. California law may surprise you.