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New California Statute Significantly Expands
Definition of Disability
May 2001
Calabasas, California – Employers should become aware of the recently
expanded definition of disability in California's anti-discrimination law. It
will become much more difficult to prevent a discrimination claim from going to
trial. The new law (AB 2222) amends the California Fair Employment and Housing
Act (FEHA), which, like the federal Americans with Disabilities Act
(ADA), prohibits employers from discriminating based on a person's actual or
perceived disability.
Overview of Changes
The new law:
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Removes the requirement that an impairment must substantially limit a major
life activity
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Requires California Courts to look at the degree of limitation or impairment
without regard for corrective or mitigating measures (e.g., eyeglasses)
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Broadens the definition of disability to include consideration of the
potential, rather than the actual effect of impairment
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Expands the list of conditions that will be considered disabilities such as
HIV, epilepsy, and diabetes
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Places responsibility on the employer to initiate the process to examine
reasonable accommodations
Significant Expansion of the Definition of Disability
The extensive amendments to California's FEHA
contained in the new legislation, took effect on January 1, 2001. Employers in
California are now required to determine if employees or potential employees
have disabilities without considering whether they use measures to
mitigate the disability. In addition, while the ADA defines 'disability' as a
physical or mental impairment that substantially limits a major life
activity, the California law broadens the scope of the definition to include an
impairment that limits to any degree a major life activity.
Federal Law Disability Definition
The federal law defines "disability" as a
physical or mental impairment that substantially limits one or more of the
major life activities of an individual. The EEOC regulations define a physical
impairment as a physiological disorder or condition, cosmetic disfigurement or
anatomical loss that affects one or more of the following bodily systems:
| Neurological |
Musculoskeletal |
Special sense organs |
Respiratory (including speech organs) |
| Cardiovascular |
Reproductive |
Digestive |
Genito-urinary |
| Hemic and lymphatic |
Skin |
Endocrine |
A mental impairment is a "mental or psychological
disorder such as mental retardation, organic brain syndrome, emotional or
mental illness and specific learning disabilities."
According to the EEOC, a major life activity includes:
| Walking |
Seeing |
Speaking |
Hearing |
| Breathing |
Learning |
Performing manual tasks |
Caring for oneself |
| Working |
Sitting |
Standing |
Lifting |
| Reaching |
Thinking |
Concentrating |
Interacting with others |
| Sleeping |
Reading* |
Traveling* |
Throwing* |
* Added by Court decisions
US Supreme Court Opinion Rejected
A major premise in the EEOC's Technical Assistance
Manual on Title 1 (the manual designed to aid employers in complying
with the federal law), was that an impairment that could be alleviated with
mitigating measures (drugs, appliances, therapies) was still an impairment
that "substantially limited" a major life activity. The US Supreme Court
rejected that premise in a series of June 1999 decisions. The key Court opinion
stated that "…Looking at the act as whole, it is apparent that if a person is
taking measures to correct for, or mitigate, a physical or mental impairment,
the effects of those measures - both positive and negative - must be taken into
account when judging whether that person is 'substantially limited'…and thus
'disabled' under the act." This was in a decision finding that twin sisters
(licensed, commercial pilots) whose nearsightedness was correctable with
glasses did not have a covered disability and were therefore not discriminated
against when denied employment by United Airlines. Using this decision,
employers began denying reasonable accommodation requests from employees who
use mitigating measures.
The new amendment to California law rejects the
Supreme Court position and now defines a disability, for purposes of
discrimination, as any condition that simply limits a major life activity
without regard to mitigating measures. California courts cannot
consider mitigating measures in determining disability.
Employers Face Increased Exposure to Litigation
The new law raises the stakes in terms of
potential litigation arising from well intentioned, but impermissible questions
or actions regarding job applicants and employees. Under federal guidelines,
the EEOC encouraged employers and employees to discuss issues regarding the
employee's disability and potential accommodations. Even though many employees
and employers were reluctant to begin the process, not knowing where it would
lead, any such discussions took place in a relatively neutral environment.
The dilemma now facing employers is that AB 2222
puts the burden on the employer to initiate the disability dialogue or
be in violation of the law. The distinction of what is an impermissible inquiry
versus a necessary question in the dialogue process is vague.
The new law prohibits, for example, asking
questions of applicants regarding actual or perceived disabilities. According
to some experts in this field, the only permitted discussions related to
disability now are:
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Whether the applicant can perform job related functions, and
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Employer responses to applicant requests for accommodation.
After an applicant is hired, employers are still
prohibited from asking employees if they have a psychological or medical
condition, unless the employer can prove that the inquiry is:
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Consistent with
business necessity, and
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Strictly, job related.
Documentation Becomes Critical
Observers in this field of employee relations
suggest a multi-step process of documentation to reduce litigation risk. The
documentation should identify: (a) the job and business necessity for the
discussion; (b) the timing and nature of the employer's offer to discuss
issues; (c) what the employee's response was; (d) the kind of accommodation (if
any) requested by the employee, and (e) the reasonable accommodation (if any)
suggested by the employer.
About VPA, Inc.
VPA Inc., headquartered in Calabasas, California,
helps employers solve the challenges associated with administering and managing
complex absence and disability programs, including FMLA, short-term, long-term,
and state disability benefit plans. VPA's clients include PepsiCo,
Hewlett-Packard, Tricon Global Restaurants, Agilent Technologies, and Charles
Schwab. VPA's expertise and technology, including web intake and inquiry,
provide a complete solution to improve productivity, control costs, and reduce
the administrative burden for self-insured employers.
Source: VPA, Inc.
Contact: Robert Trotta, 800-473-9761
VPA is not a law firm.
This is a general summary only and is not intended to be, and should not be,
relied upon for purposes of interpreting the law. Consult your legal counsel or
representative for details on the impact of AB 2222 and the ADA
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