Were you fired because of your disability, because you requested a reasonable accommodation, or because you couldn’t do your job without a necessary accommodation? If so, you may have a wrongful termination claim against your former employer. This article explains your legal rights as a California employee with a disability and what to do if you believe your rights were violated.
The federal Americans with Disabilities Act (ADA) prohibits disability discrimination in the workplace and requires employers to provide reasonable accommodations to employees with disabilities. The ADA applies to private employers with at least 15 employees.
In California, the Fair Employment and Housing Act (FEHA) also prohibits workplace discrimination based on disability and requires employers to provide reasonable accommodations. However, the FEHA offers more protection than the ADA; it applies to smaller employers—those with at least five employees—and defines “disability” more broadly.
Federal and state law also provide certain leave rights to employees with disabilities (see "Time Off" below).
Under the ADA, a disability is a physical or mental impairment that substantially limits at least one major life activity. Major life activities are things that are of central importance to daily life, such as working, walking, learning, hearing, speaking, seeing, breathing, caring for oneself, and performing manual acts. Major bodily functions, such as normal cell growth, normal brain function, and the proper working of the digestive, endocrine, and reproductive systems, also qualify as major life activities.
California law defines disability in a more expansive way, to protect more people. An employee’s condition need only limit (rather than substantially limit) a major life activity. California law also specifically covers special education disabilities (an impairment or disorder that requires, or has in the past required, special education services).
Under both federal and California law, an employer may not discriminate based on your record or history of disability (for example, because you have undergone cancer treatment) or your employer’s mistaken belief that you have a disability. California also specifically prohibits discrimination based on an employer’s perception that an employee may develop a disability in the future.
Your employer may not make job decisions based on your disability, as long as you can perform the essential functions of your position, with or without a reasonable accommodation. (Find out more about this requirement in Essential Job Functions Under the ADA.)
The ADA and the FEHA both require employers to provide reasonable accommodations for employees with disabilities. Reasonable accommodations include changes to work rules, job duties, or the structure and configuration of the workplace, which will allow an employee with a disability to do the job. (See our Reasonable Accommodations page for more details.)
The burden is on you to ask for a reasonable accommodation. (For tips, see Requesting a Reasonable Accommodation.) Your employer must then work with you to come up with an accommodation that will allow you to do your job. In fact, it is a separate violation of California law for an employer to refuse to engage in this process with you.
Your employer doesn’t have to give you the exact accommodation you request; it must only provide you with an effective accommodation. And, your employer is not legally required to provide an accommodation that would create undue hardship, which means it would involve significant difficulty or expense, based on the company’s resources, size, structure, and nature.
You might need to take time off work for doctors' visits, treatment, ongoing therapy, surgery or other medical procedures, or recuperation. The federal Family and Medical Leave Act (FMLA) gives eligible employees the right to take up to 12 weeks of unpaid leave for their own serious health conditions. However, the FMLA applies only to employers with at least 50 employees. California has a similar law, the California Family Rights Act (CFRA), which also applies only to employers with at least 50 employees.
If you're not eligible for FMLA or CFRA leave, or you have exhausted your leave, your employer may be required to give you additional time off as a reasonable accommodation under the ADA or FEHA. Whether, and how much, time off is required will depend on several things, including the nature of your job; your employer's size, finances, and resources; and whether you have a foreseeable return-to-work date. Employers are not required to provide indefinite leave as an accommodation. (Find out more in Time Off Work as a Reasonable Accommodation.)
California's paid sick leave law may also provide you with limited time off. All employers must provide employees with one hour of paid sick time for every 30 hours worked. However, employers may cap sick leave at six days per year.
California also has a state temporary disability program, which pays eligible employees who are temporarily unable to work due to disability a little more than half of their usual wages. This program doesn’t give you the right to take time off in the first place, only the right to be paid during time off provided by other laws or your employer’s policies. You can get more information on this program at the website of the California Employment Development Department.
If you lost your job in any of these circumstances, you may have a good case against your employer:
If you believe you were terminated wrongfully because of your disability, you can pursue legal action against your employer. But first, you must file a discrimination charge with a government agency.
If you believe your employer violated federal or state discrimination laws, such as the ADA or FEHA, you’ll need to file a charge of discrimination with a government agency. You may file with either the Equal Employment Opportunity Commission (EEOC), the federal agency that enforces the ADA, or California’s Department of Fair Employment and Housing (DFEH), which enforces the FEHA. You have 300 days to file for your federal claims, and one year to file for your state claims. (However, it's best to file everything at once, well before the deadline; see Filing an EEOC Charge of Discrimination to learn more.)
You may not file a discrimination lawsuit against your employer until you receive a "right-to-sue" letter from the EEOC or DFEH, which confirms that you met your obligation to file a charge. If you want to file a lawsuit right away, you can ask the agency to issue you the letter immediately. However, once the letter is issued, you will have only 90 days to file a lawsuit based on your federal claims (and one year for your state claims).
For violations of the FMLA or the CFRA, you can go straight to court without filing a charge with a federal or state agency.
If you win your lawsuit, you can ask the court to order your employer to give you your job back. However, this remedy, called reinstatement, is relatively rare. Typically, the termination and legal proceedings have soured the employment relationship too much for the parties to work together again.
It's more common to ask for money damages to compensate you for the harm done by your employer’s actions. Depending on the facts of your case, these damages might include:
Although federal law does not place a cap on lost wages, it does impose a cap on how much you can be awarded for pain and suffering, out-of-pocket losses (such as the costs of looking for a new job), and punitive damages. Depending on the size of your employer, the maximum combined award for these types of damages ranges from $50,000 to $300,000.
Unlike federal law, California does not place a cap on awards for pain and suffering and punitive damages.
If you are considering filing an EEOC or DFEH charge, or a lawsuit against your employer, you should talk to an employment lawyer. A lawyer can help you determine whether you have a strong case, how much you might be awarded if you are successful, and how to negotiate a fair settlement. A lawyer can also try to hammer out a severance agreement with your employer, attend interviews and mediation sessions, and—of course—represent you in court.
You may be concerned about the cost of hiring a lawyer, especially if you are still out of work. In discrimination cases, however, lawyers generally charge on a contingency basis, which means the lawyer collects fees only if you win your case (by taking a percentage of your award).
Learn more about hiring a lawyer in a discrimination case, including how lawyers charge and how they decide whether to take a case, at our Asserting your Rights Against Discrimination page. To find a local employment lawyer, check out Nolo’s Lawyer Directory.