1st: Does the employee have a disability?
The general rule of law is that a person is physically disabled under FEHA when he or she has a condition that affects a body system and that condition limits a major life activity. See California Govt. Code 12926 (k)(1)(A)(B). A "body system" includes neurological, immunological, musculoskeletal, special sense organs, respiratory, including speech organs, cardiovascular, reproductive, digestive, genitourinary, hemic and lymphatic, skin, and endocrine. "Major life activities" include caring for one’s self, performing manual tasks, speaking, breathing, seeing, walking, hearing, learning and working.
2nd: Could you perform the essential functions of the job?
If you have a condition and it affects a major life activity, does that prevent you from performing the essential functions of the job? Keep in mind that you have to be qualified to have performed the job to begin with. If you were not qualified for the positon, your employer is not necessarily breaking the law if you have a physical disability and are denied the job. If you are asking your employer to be reassigned to a position because of a disabilty, you, the employee, have the burden to prove you were qualfiied for that reassignment. Otherwise, if you were not qualified, a court may find the employer did not discriminate against you.
3rd: Were you discriminated against because of your disability?
Last, but not least, can you, the employee, show that you were discriminated against because you have a disability. Generally, the closer in time between when your employer learns of your disability and any action taken against you will help you prove you were discriminated against because of your disability. For example: On monday your employer learns that you have a physical disability. On Tuesday, you were fired without reason. That short time between the two events helps establish you were discriminated against because of your disability.
4th: Does your employer have a defense, a valid reason for not giving you the job?
Even if you can satisfy the elements of disability discrimination it does not mean your employer is automatically at fault for discriminating against you. Your employer is allowed to present a defense to why they did what they did and still not be held to have discriminated against you. One defense an employer has is that an employer is not required to create new position or bump other employees to accommodate the disabled employee. See Rory Cuiellette v. City of Los Angeles 2011 DJDAR 5687 citing Spitzer v. The Good Guys, Inc. (2000) 80 Cal.App.4th 1376, 1389; citing Hastings v. Department of Corrections (2003) 110 Cal.App.4th 963, 972.
