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How to prove failure to accommodate disability?

Do you have a claim for failure to accommodate your medical condition?  

If you have a claim for disability discrimination, you may also have a standalone claim for failure to accommodate your disability.  In order the prevail on a claim for failure to accommodate a disability, you have to establish the following elements: (1) you have a disability recognized by the Fair Employment and Housing Act (“FEHA”); and (2)  you are fully qualified and able to perform the essential functions of your position with a reasonable accommodation.  For purposes of this particular claim, you do not have to establish that you suffered an “adverse employment action” as a consequence of your disability.  Under FEHA, your employer’s failure to reasonably accommodate you is a violation of the statute in and of itself.  Jensen v. Wells Fargo Bank, 85 Cal.App.4th 245, 256, (2000).


As to the first element, it is not enough to merely allege that you have a disability as a result of a medical condition.  Your medical condition must limit your ability to substantially participate in one or more major life activities.  Such a qualifying disease or condition “limits a major life activity if it makes the achievement” of the activity “difficult.”  “Limits” is determined without regard to mitigating measures, such as medications, assistive devices, or reasonable accommodations, unless the mitigating measure itself limits a major life activity.  Gov. Code, § 12926; Colmenares v. Braemar Country Club, Inc., 29 Cal.4th 1019, 1027 (2003).

The California Code of Regulations clarifies that “major life activities” include, among other things, “caring for oneself, performing manual tasks, seeing, hearing, eating, sleeping, walking, standing, sitting, reaching, lifting, bending, speaking, breathing, learning, reading, concentrating, thinking, communicating, interacting with others, and working.”  Cal.Code Regs. tit. 2, § 11065.

Assuming that you are able to prove that you are disabled within the meaning of FEHA, the second element requires you to prove that you are still capable of performing the essential functions of your job with a reasonable accommodation.  For example, if you are a pilot with a vision impairment and your doctor permanently restricts you from flying a plane, then a court might find that your employer cannot reasonably accommodate your medical restriction.

When faced with a lawsuit for failure to accommodate a disability, employers often claim that the employee could not perform the essential duties of the job by citing job responsibilities that were not actually essential to the position.  Keep in mind that not all peripheral tasks are “essential.”   The foregoing was a simple overview of the burden of proof that you as the claimant/plaintiff has to satisfy.  If you are concerned that you are not being treated fairly with respect to your request for an accommodation, we urge you to speak to an attorney.  California has strict deadlines for pursuing a legal action.

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