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Disability Discrimination and California’s Employment Laws

California employers are often prohibited from discriminating against employees with disabilities.

The last few decades have seen a dramatic increase in the number of laws protecting employees with disabilities from discrimination. The State of California leads the nation in adopting laws that are favorable to disabled employees.

In general, both employees and job applicants have a right to be free from discrimination on the basis of their disability.1 The word “disability,” in the employment context, can include a wide range of physical and mental conditions.2

Still, not every disability or California worker is protected from discrimination. So, it’s important to know exactly how far an employee’s rights extend. This article explores the types of anti-discrimination protections employees with disabilities receive in California.

California employees are protected by both federal and state laws.

In California, the most important law protecting employees from disability discrimination is called The Fair Employment and Housing Act of 1959 (or “FEHA,” for short).3

FEHA is a state law that prohibits certain employers from discriminating on the basis of an employee’s physical disability, mental disability, or medical condition.4 There are three types of employers covered by FEHA:

  • Employers that regularly employ five or more people,
  • People that act as an agent of a covered employer, and
  • Divisions of state or local governments in California.5

Religious associations and religious nonprofit corporations are not “employers” for these purposes.6

FEHA is important because, in most cases, it provides the broadest protections available to California employees.7 And in cases where it doesn’t, it often adopts the position of the laws that do provide the broadest protections.8

In addition to FEHA, there are two federal laws that protect against disability discrimination: The Americans with Disabilities Act of 19909 (called “the ADA”), and The Rehabilitation Act of 197310 (called “the Rehab Act”).11

Both the ADA and the Rehab Act prohibit covered employers from discriminating against employees on the basis of their disability.12 Importantly, however, the applicability of federal laws is more limited than FEHA.

The ADA generally only applies employers with 15 or more employees.13 The Rehab Act governs federal employers, employers with federal contracts, and employers receiving federal assistance.14

Most California employees can seek relief under FEHA, the ADA, or both at the same time.15 But FEHA will usually be more important for California employees, unless they work for the federal government.16

Because FEHA provides more protection to most California employees than the ADA, the rest of the article will focus on the rules applicable under FEHA.

A disability is a condition that limits a major life activity.

California law protects employees who suffer from:

  • A physical disability,
  • A mental disability, or
  • A medical condition.17

California law also protects employees from discrimination based on their genetic information.18 That type of discrimination, however, will usually fall into one of the categories above.

Major Life Activity

Regardless of the exact type of disability suffered by the employee, the condition must limit a major life activity.19 A condition limits a major life activity if it makes the activity’s achievement difficult.20

Courts will interpret the phrase “major life activity” broadly.21 Major life activities include social activities, basic life functions (walking, eating, sleeping, etc.), working, physical activities, and mental activities.22

Physical Disabilities

Perhaps the most common type of disabilities faced by employees are physical disabilities. In most cases, a physical disability is a bodily condition, cosmetic disfigurement, or anatomical loss that affects one or more of the body’s major systems and limits a major life activity.23

The body’s major systems are: neurological, immunological, musculoskeletal, special sense organs, respiratory, including speech organs, cardiovascular, reproductive, digestive, genitourinary, hemic and lymphatic, skin, and endocrine.24

A worker can also establish that they have a physical disability by showing: that they have any health impairment that requires special education or related services; that they have a record or history of a disease, disorder, condition, cosmetic disfigurement, anatomical loss, or health impairment; or that their employer has a mistaken belief that the worker has or had a physical disability.25

Mental Disabilities

A mental disability is any mental or psychological condition.26 Unfortunately, California law does not provide a clear definition of what this means. Instead, California’s regulations provide examples of types of conditions covered:

  • Emotional illnesses,
  • Certain learning disabilities,
  • Autism spectrum disorders,
  • Mental illnesses,
  • Intellectual or cognitive disability,
  • Schizophrenia
  • Post-traumatic stress disorder, and
  • Clinical depression,
  • Bipolar disorder,
  • Obsessive compulsive disorder.27

It is likely that other types of mental conditions are also covered. But courts will examine those on a case-by-case basis.

Medical Conditions

A medical condition is any genetic characteristic associated with a disease, or any health impairments related to a diagnosis of cancer.28

Medical conditions are typically a problem with workers who have a greater-than-normal risk of future health issues.

So, even though an employee is not presently experiencing symptoms, their employer is prohibited from discriminating against them for of future medical problems. The risk of medical problems in the future, standing alone, renders them legally “disabled” and gives them a right to protection.

Perceived Disabilities

California law protects workers from discrimination on the basis of an actual disability as well as a perceived disability.29 As such, workers can be protected from disability discrimination even though they don’t actually have a qualifying disability. The employer’s mistaken belief in the employee’s disability is enough to shield the employee from discrimination.30

Example

A business manager sees an employee limping and, believing the employee was experiencing a mobility impairment, terminates the employee. In reality, the employee had temporary soreness from sitting in the wrong position.

The business manager committed disability discrimination because he believed the employee had a physical disability. It doesn’t matter that the employee never actually suffered from a real disability.

Examples

California law specifically includes certain conditions within the meaning of the word “disability.” Those are:

  • Deafness,
  • Blindness,
  • Missing limbs (whether partial or complete),
  • Mobility impairments requiring the use of a wheelchair,
  • Cerebral palsy, and
  • Chronic or episodic conditions such as HIV/AIDS, hepatitis, epilepsy, seizure disorder, diabetes, multiple sclerosis, and heart and circulatory disease.31

Exclusions

Certain types of disabilities are specifically excluded from protection under California law. For example, an employee does not have a qualified disability if their condition is mild and temporary.32 Mild conditions are determined on a case-by-case basis. They include conditions that have little or no long-term effects.33

Common types of mild or temporary disabilities include:

  • Seasonal or common influenza,
  • Minor cuts or abrasions,
  • The common cold,
  • Sprains,
  • Bruises,
  • Muscle aches,
  • Soreness,
  • Non-migraine headaches, and
  • minor and non-chronic gastrointestinal disorders.34

California law also excludes certain types of mental disabilities that are closely associated with employee wrongdoing. Those include:

  • Compulsive gambling,
  • Kleptomania,
  • Pyromania,
  • Substance abuse disorders resulting from the current unlawful use of drugs, and
  • Certain sexual behavior disorders, like pedophilia, exhibitionism, and voyeurism.35

The Types of Discrimination

All types of discrimination fall into two broad categories:

  • Disparate treatment discrimination, and
  • Disparate impact discrimination.36

Disparate treatment discrimination happens when an employee is specifically targeted or singled out because of his or her disability. In this kinds of cases, the employer’s actions must be motivated by a discriminatory intent.37

Disparate treatment might happen when the employer demotes, refuses to hire, refuses to promote, harasses, or takes some other negative action against the specific employee. Disparate treatment cases represent the most common type of discrimination employees face.

Disparate impact discrimination happens when an employer adopts a policy that applies to all employees, but has a more negative impact on those with disabilities than those without.38

Put another way, disparate impact claims arise when employers adopt policies that are “facially neutral” in that they don’t appear to discriminate on the basis of a disability. The policy might be unlawful, however, if it nevertheless has a disproportionately adverse impact on employees with disabilities.

In a disparate impact case, the employer can be held liable even if the employer had no discriminatory intent whatsoever.39

Disparate Treatment Discrimination

The most common issue raised by employees with disabilities is that they were specifically targeted by their employer. This type of discrimination is called disparate treatment discrimination, and in many cases is prohibited by both federal and California labor laws.40

The Basic Elements

In general, employees have the burden of proving that they were the victim of disability discrimination.41 To prove this, the employee must present evidence to prove each fact essential to the claim.42 These facts are called elements of the claim.

In most cases, the elements of a disability discrimination claim are as follows:

  • The worker was an employee or applicant of a covered employer;
  • The employer knew that the worker suffered from a qualifying disability;
  • The worker could perform the essential functions of the job, even if a reasonable accommodation was needed to do so;43
  • The employer harmed the worker by either: failing to provide a reasonable accommodation or subjecting the worker to an adverse employment action;44; and
  • The worker’s disability was a motivating reason for the employer’s action.45

To receive protections, employees must be capable of performing the job’s essential functions.

Employers are generally allowed to discriminate on the basis of a disability if the employee is unable to perform the essential functions of the position.46 Importantly, however, employers must provide the employee with a reasonable accommodation if doing so would enable the employee to perform the position’s essential functions.47

The essential functions of a position are the fundamental duties of the job.48 This definition is somewhat vague, but job functions will generally be essential if the employer would have to hire another person if the employee cannot perform the particular function because of their disability.

Essential functions are distinguishable from what courts call the “marginal functions” of a job. Marginal functions are duties that can be shifted to another employee or performed in a different way, so as to accommodate the employee’s disability.

A function might also be “marginal” if the employer would still need someone with the employee’s job even if the employee wasn’t performing those duties.49

California’s regulations provide three examples of when a job’s function might be essential, as opposed to marginal. A job function may be essential if:

  • The reason the worker’s position exists is to perform that function,
  • There are a limited number of people working for the employer and the job function cannot be distributed among them, or
  • The worker was hired specifically for his ability to perform a highly-specialized function.50

Of course, there may be other factors courts will consider to determine if a job function is essential. But this list provides a basic model that courts sometimes use to weigh the position’s importance.

Employers must provide reasonable accommodations for employees with disabilities.

In some cases, employees are capable of performing a job’s essential functions but need some help to do so. In these situations, employers may be required to provide the employee with a reasonable accommodation.51

A reasonable accommodation is a modification to an employee’s job duties or work environment that can help give them the ability to perform the essential functions of the position.52 Importantly, employers are only required to provide employees with reasonable accommodations.

The best type of accommodation will vary from job to job. And the question of whether an desired accommodation is reasonable is often hotly-contested in court. But courts are flexible in making this decision.53

Examples

Reasonable accommodations often involve:

  • Restructuring the employee’s job,
  • Altering the work schedule or location of the work performed,
  • Making existing facilities readily accessible,
  • Reassigning the employee to a different position,
  • Altering the deadlines of certain tasks, or
  • Changing how functions are performed.54

Sometimes, the employer might even be required to permit the employee to take a period of leave from work.55

Employers must engage in an interactive process to find a reasonable accommodation.

To decide which accommodations are reasonable in a particular case, employers must engage in an interactive process with the employee. An interactive process is an informal meeting or set of communications between an employer and employee in which the parties explore of possible accommodations for the employee’s disability.56

Employers violate the law when they fail to participate in an interactive process.57 This process is controlled by a few important rules:

  • Good Faith. Both parties have an obligation to participate in this process in good faith. Meaning, they may not go into the process with the intention of rejecting all proposed accommodations.58
  • Don’t Delay. Parties must engage in the process in a timely fashion. They may not obstruct or delay their participation.59
  • Consider Everything. Employers are required to consider “any and all” reasonable accommodations they are aware of, unless those accommodations will create an undue hardship.60
  • Employee’s Preference. The employer must consider the employee’s preference in deciding which kind of accommodation to select.61
  • Employer’s Decision. Employers have discretion to choose between accommodations that are otherwise reasonable and effective.62

An employee may choose to have a lawyer represent them during the course of this process.63

Employers aren’t required to endure an undue hardship just to accommodate a disability.

Employers do not have an obligation to provide an accommodation if doing so would cause the employer to experience an undue hardship.64 An undue hardship is one that would require significant difficulty or expense on the part of the employer.65

California law provides several factors that courts may consider to determine whether a hardship is undue. Those include:

  • The nature and cost of the accommodation needed,
  • The employer’s financial resources,
  • The impact that the accommodation will likely have on the employer’s business operations, and
  • The overall size of the business.66

It is important to remember that the factors courts will consider may vary from case to case. The specific employer’s needs and business will be taken into account.

Employers can’t refuse to hire, promote, or give a raise to employees because of their disability.

If the employee is capable of performing the essential functions of a job—even if a reasonable accommodation is needed—California law protects them from adverse employment actions due to their disability.67

Adverse employment actions can happen when:

  • An employer refuses to hire a person because of their disability.
  • An employer refuses to select a person for a training program that might lead to employment because of the prospective employee’s disability.
  • An employer terminates or discharges an employee from their job because of their disability.
  • An employer refuses to give an employee a raise because of their disability.
  • An employer pays an employee less than they otherwise would because of the employee’s disability.
  • An employer restricts some other terms, conditions, or privileges of the employee’s job because of a disability.68

Disparate Impact Discrimination

Employers are prohibited from adopting a policy or practice that has a disproportionate effect on employees with disabilities if the policy is unrelated to the job’s requirements.69 When an employer violates this kind of policy, an employee seek relief under a disparate impact theory of disability discrimination.

Employees usually have the burden of proving that they were the victim of disparate impact discrimination.70

In most cases, the elements of a disparate impact claim based on disability discrimination claim are as follows:

  • The worker was an employee or applicant of a covered employer,
  • The employer adopted a practice or policy that had a disproportionately-adverse effect on workers with disabilities,
  • The practice or policy had no clear relationship to the job’s requirements,71 and
  • The worker was harmed by the policy.72

An important aspect of this kind of case is that an employer can be held liable even if they had no discriminatory intent.73 This can benefit employees if the employer’s motivation was unclear or difficult to prove.

Victims of discrimination should act quickly to obtain relief.

Employees must file their claim within a specific period of time or else their claim will be considered time-barred and will probably not be heard or considered by a court. These legal deadlines are called statutes of limitation.

Unfortunately, employees are not allowed to go straight to court with a lawsuit.74 They must first file a written complaint with an administrative agency.75

If the employee is bringing claims under state law, they must file a complaint against the employer with California’s Department of Fair Employment and Housing (the DFEH). They must do this no later than one year from the date of the alleged discriminatory act.76

If the employee is bringing claims under federal law, the complaint can be filed with either the DFEH or the U.S. Equal Employment Opportunity Commission (the EEOC).77 The deadline to bring federal claims is 300 days from the date of the alleged discriminatory act.78

If an employee still wants to pursue their claim after the administrative process has concluded, they will usually have the right to file a lawsuit in court. To do so, however, they must have been issued a right-to-sue letter from the DFEH or the EEOC.79

If the employee is seeking relief under state law theories only, the employee with have one year to file a lawsuit in a state civil court against the employer.80 This one-year clock starts ticking as soon as the employee receives the right-to-sue letter.

If the employee is seeking relief under federal law, the employee will have 90 days from the date of the right-to-sue letter to file a lawsuit in either state or federal court.81

There are, of course, limited exceptions to these time limits. But it is always best to avoid relying on them if at all possible.

Conclusion

Employees who face discrimination in the workplace should never have to suffer alone. Having an attorney on your side can provide important benefits to both you and your family. In many cases, there are no upfront costs to hire a lawyer—they will instead take a percentage of whatever they can win for you.

If you have been the victim of disability discrimination, give our California lawyers a call at (310) 997-2409.


  1. Gov’t Code, § 12940, subd. (a) [“It is an unlawful employment practice . . . [f]or an employer, because of the . . . physical disability, mental disability, medical condition, [or] genetic information . . . of any person, to refuse to hire or employ the person or to refuse to select the person for a training program leading to employment, or to bar or to discharge the person from employment or from a training program leading to employment, or to discriminate against the person in compensation or in terms, conditions, or privileges of employment.”].

  2. See Gov’t Code, § 12926.1 [“The law of this state contains broad definitions of physical disability, mental disability, and medical condition. It is the intent of the Legislature that the definitions of physical disability and mental disability be construed so that applicants and employees are protected from discrimination due to an actual or perceived physical or mental impairment that is disabling, potentially disabling, or perceived as disabling or potentially disabling.”].

  3. Gov’t Code, §§ 12900–12996.

  4. Gov’t Code, §§ 12926, subds. (d), (i)(2), 12926.1, 12940, subd. (a).

  5. Gov’t Code, § 12926, subd. (d).

  6. Gov’t Code, § 12926, subd. (d).

  7. Gov’t Code, § 12926.1 [“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.”]; see also 42 U.S.C. § 12201, subd. (b).

  8. See, e.g., Gov’t Code, § 12926, subd. (n).

  9. 42 U.S.C. §§ 12101–12213.

  10. 29 U.S.C. §§ 701–796L.

  11. There is also The Genetic Information Nondiscrimination Act of 2008 (called “GINA”). (42 U.S.C. §§ 2000ff–2000ff-11.).

  12. 29 U.S.C. §§ 701, 791, 793, 794; 42 U.S.C. § 12112(a) [“No covered entity shall discriminate against a qualified individual on the basis of disability in regard to job application procedures, the hiring, advancement, or discharge of employees, employee compensation, job training, and other terms, conditions, and privileges of employment.”].

  13. 42 U.S.C. § 12111(5)(A) [“The term ’employer’ means a person engaged in an industry affecting commerce who has 15 or more employees for each working day in each of 20 or more calendar weeks in the current or preceding calendar year, and any agent of such person, except that, for two years following the effective date of this title, an employer means a person engaged in an industry affecting commerce who has 25 or more employees for each working day in each of 20 or more calendar weeks in the current or preceding year, and any agent of such person.”]; 29 C.F.R. § 1630.2(e)(1).

  14. 29 U.S.C. §§ 791, 793, 794.

  15. 42 U.S.C. § 12201(b) [“Nothing in this Act shall be construed to invalidate or limit the remedies, rights, and procedures of any Federal law or law of any State or political subdivision of any State or jurisdiction that provides greater or equal protection for the rights of individuals with disabilities than are afforded by this Act.”]; 29 C.F.R. § 1630.1(d).

  16. “Though the FEHA predates the Americans with Disabilities Act of 1990 (the ‘ADA’), the California Legislature significantly amended the FEHA in 1992, modeling it after the ADA. [Citations.] Accordingly, where ‘the particular provision in question in the FEHA is similar to the one in the ADA, the courts have looked to decisions and regulations interpreting the ADA to guide construction and application of the FEHA.’ [Citations.] However, ‘in a number of instances FEHA’s anti-discrimination provisions provide even greater protection to employees’ than does the ADA. [Citations.]” (Diaz v. Fed. Express Corp. (C.D.Cal. 2005) 373 F.Supp.2d 1034, 1053–1054.)

  17. Gov’t Code, § 12920.

  18. Gov’t Code, §§ 12920, 12926; Cal. Code Regs., tit. 2, § 11065, subd. (h).

  19. Gov’t Code, § 12926, subd. (m)(1); Cal. Code Regs., tit. 2, § 11065, subds. (d)(1), (2).

  20. Gov’t Code, § 12926, subd. (m)(1)(B)(ii) [“A physiological disease, disorder, condition, cosmetic disfigurement, or anatomical loss limits a major life activity if it makes the achievement of the major life activity difficult.”].

  21. Gov’t Code, § 12926, subd. (m)(1)(B)(iii).

  22. Gov’t Code, § 12926, subd. (m)(1)(B)(iii) [“‘Major life activities’ shall be broadly construed and includes physical, mental, and social activities and working.”]; Cal. Code Regs., tit. 2, § 11065, subd. (l)(1).

  23. Gov’t Code, § 12926, subd. (m)(1); Soria v. Univision Radio Los Angeles, Inc. (2016) 5 Cal.App.5th 570, 584; Colmenares v. Braemar Country Club, Inc. (2003) 29 Cal.4th 1019, 1026.

  24. Gov’t Code, § 12926, subd. (m)(1)(A).

  25. Gov’t Code, § 12926, subd. (m).

  26. Gov’t Code, § 12926, subd. (j)(1); Cal. Code Regs., tit. 2, § 11065, subd. (d)(1).

  27. Cal. Code Regs., tit. 2, § 11065, subd. (d)(1).

  28. Gov’t Code, § 12926, subd. (i); Cal. Code Regs., tit. 2, § 11065, subd. (d)(7).

  29. Gov’t Code, § 12926.1, subd. (c) [“It is the intent of the Legislature that the definitions of physical disability and mental disability be construed so that applicants and employees are protected from discrimination due to an actual or perceived physical or mental impairment . . . .”]; Cal. Code Regs., tit. 2, § 11065, subd. (d)(5).

  30. Wallace v. County of Stanislaus (2016) 245 Cal.App.4th 109, 124, 133–134.

  31. Cal. Code Regs., tit. 2, § 11065, subd. (d)(2)(C).

  32. Cal. Code Regs., tit. 2, § 11065, subd. (d)(9)(B).

  33. See, e.g., Muller v. Auto. Club of So. Cal. (1998) 61 Cal.App.4th 431, 440–444 [no disability found where employee suffered from a mere temporary anxiety disorder].

  34. Cal. Code Regs., tit. 2, § 11065, subd. (d)(9)(B) [“‘Disability’ does not include: . . . conditions that are mild, which do not limit a major life activity, as determined on a case-by-case basis. These excluded conditions have little or no residual effects, such as the common cold; seasonal or common influenza; minor cuts, sprains, muscle aches, soreness, bruises, or abrasions; non-migraine headaches, and minor and non-chronic gastrointestinal disorders.”].

  35. Gov’t Code, § 12926, subd. (j)(5); Cal. Code Regs., tit. 2, § 11065, subds. (d)(9)(A) [“‘Disability’ does not include: . . . compulsive gambling, kleptomania, pyromania, or psychoactive substance use disorders resulting from the current unlawful use of controlled substances or other drugs, and “sexual behavior disorders . . . .”], (q).

  36. Knight v. Hayward Unified School Dist. (2005) 132 Cal.App.4th 121, 128 [“In general, there are two types of illegal employment discrimination under the ADA and the FEHA: disparate treatment and disparate impact.”].

  37. Caldwell v. Paramount Unified School Dist. (1995) 41 Cal.App.4th 189, 195 [“In order to prevail under the disparate treatment theory, an employee must show that the employer harbored a discriminatory intent.”].

  38. Knight v. Hayward Unified School Dist. (2005) 132 Cal.App.4th 121, 129 [“To prevail on a theory of disparate impact, the employee must show that regardless of motive, a facially neutral employer practice or policy, bearing no manifest relationship to job requirements, in fact had a disproportionate adverse effect on certain employees because of their membership in a protected group.”].

  39. Int’l Bhd. of Teamsters v. United States (1977) 431 U.S. 324, 335, fn. 15 [97 S.Ct. 1843, 1854] [“Claims of disparate treatment may be distinguished from claims that stress ‘disparate impact.’ The latter involve employment practices that are facially neutral in their treatment of different groups but that in fact fall more harshly on one group than another and cannot be justified by business necessity. [Citations.] Proof of discriminatory motive, we have held, is not required under a disparate-impact theory.”].

  40. Caldwell v. Paramount Unified School Dist. (1995) 41 Cal.App.4th 189, 195.

  41. Sandell v. Taylor-Listug, Inc. (2010) 188 Cal.App.4th 297, 307; Knight v. Hayward Unified School Dist. (2005) 132 Cal.App.4th 121, 129.

  42. Guz v. Bechtel National, Inc. (2000) 24 Cal.4th 317, 367.

  43. Green v. State of California (2007) 42 Cal.4th 254, 262.

  44. Nealy v. City of Santa Monica (2015) 234 Cal.App.4th 359, 373.

  45. Cal. Civil Jury Instructions, nos. 2500, 2540, 2541 [defining the elements of a disparate treatment disability discrimination claim].

  46. Gov’t Code, §§ 12926, subd, (f), 12940, subd. (a)(1) [“This part does not prohibit an employer from refusing to hire or discharging an employee with a physical or mental disability . . . where the employee, because of his or her physical or mental disability, is unable to perform his or her essential duties even with reasonable accommodations . . . .”]; .

  47. Nealy v. City of Santa Monica (2015) 234 Cal.App.4th 359, 373.

  48. Gov’t Code, § 12926, subd. (f) [“‘Essential functions’ means the fundamental job duties of the employment position the individual with a disability holds or desires.”].

  49. Gov’t Code, § 12926, subd. (f); Cal. Code Regs., tit. 2, § 11065, subd. (e)(3) [“‘Marginal functions’ of an employment position are those that, if not performed, would not eliminate the need for the job or that could be readily performed by another employee or that could be performed in an alternative way.”].

  50. Gov’t Code, § 12926, subd. (f)(1); Cal. Code Regs., tit. 2, § 11065, subd. (e)(1)(A).

  51. Gov’t Code, § 12940, subd. (m)(1) [“It is an unlawful employment practice . . . [f]or an employer or other entity covered by this part to fail to make reasonable accommodation for the known physical or mental disability of an applicant or employee.”].

  52. Nealy v. City of Santa Monica (2015) 234 Cal.App.4th 359, 373.

  53. Prilliman v. United Air Lines, Inc. (1997) 53 Cal.App.4th 935, 948.

  54. Nealy v. City of Santa Monica (2015) 234 Cal.App.4th 359, 374; Gov’t Code, § 12926, subd. (p)(2); Cal. Code Regs., tit. 2, § 11065, subd. (p)(2).

  55. Cal. Code Regs., tit. 2, §§ 11065, subd. (p)(2)(M), 11068, subd. (c).

  56. Scotch v. Art Institute of California (2009) 173 Cal.App.4th 986, 1013; Humphrey v. Memorial Hosps. Ass’n (9th Cir. 2001) 239 F.3d 1128, 1137 [“The interactive process requires communication and good-faith exploration of possible accommodations between employers and individual employees, and neither side can delay or obstruct the process.”].

  57. Cal. Gov’t Code, § 12940, subd. (n).

  58. Cal. Code Regs., tit. 2, § 11069, subd. (a).

  59. Humphrey v. Memorial Hosps. Ass’n (9th Cir. 2001) 239 F.3d 1128, 1137.

  60. Cal. Code of Regs., tit. 2, § 11068, subd. (e).

  61. Cal. Code of Regs., tit. 2, § 11068, subd. (e).

  62. Hanson v. Lucky Stores, Inc. (1999) 74 Cal.App.4th 215, 228.

  63. Jensen v. Wells Fargo Bank (2000) 85 Cal.App.4th 245, 261.

  64. Cal. Code of Regs., tit. 2, § 11068, subd. (a); Prilliman v. United Air Lines, Inc. (1997) 53 Cal.App.4th 935, 950–951 [“[A]n employer who knows of the disability of an employee has an affirmative duty to make known to the employee other suitable job opportunities with the employer and to determine whether the employee is interested in, and qualified for, those positions, if the employer can do so without undue hardship or if the employer offers similar assistance or benefit to other disabled or nondisabled employees or has a policy of offering such assistance or benefit to any other employees.”].

  65. Gov’t Code, § 12926, subd. (u).

  66. Prilliman v. United Air Lines, Inc. (1997) 53 Cal.App.4th 935, 947; Cal. Code Regs., tit. 2, § 11065, subd. (r).

  67. Yanowitz v. L’Oreal USA, Inc. (2005) 36 Cal.4th 1028, 1049 [“We turn next to an issue that generally is referred to in the employment discrimination cases and literature under the rubric of ‘adverse employment action.’ This term does not appear in the language of the FEHA or in title VII, but has become a familiar shorthand expression referring to the kind, nature, or degree of adverse action against an employee that will support a cause of action under a relevant provision of an employment discrimination statute.”].

  68. Gov’t Code, § 12940, subd. (a); see also Yanowitz v. L’Oreal USA, Inc. (2005) 36 Cal.4th 1028, 1050–1051 [“[W]e conclude that the term ‘otherwise discriminate’ in section 12940(h) should be interpreted to refer to and encompass the same forms of adverse employment activity that are actionable under section 12940(a).”].)

  69. Scotch v. Art Inst. of California (2009) 173 Cal.App.4th 986, 1002.

  70. Sandell v. Taylor-Listug, Inc. (2010) 188 Cal.App.4th 297, 307; Knight v. Hayward Unified School Dist. (2005) 132 Cal.App.4th 121, 129.

  71. Guz v. Bechtel National, Inc. (2000) 24 Cal.4th 317, 354, fn. 20 [“Prohibited discrimination may . . . be found on a theory of disparate impact, i.e., that regardless of motive, a facially neutral employer practice or policy, bearing no manifest relationship to job requirements, in fact had a disproportionate adverse effect on members of the protected class.”].

  72. Cal. Civil Jury Instructions, nos. 2502.

  73. Int’l Bhd. of Teamsters v. United States (1977) 431 U.S. 324, 335, fn. 15 [97 S.Ct. 1843, 1854].

  74. Martin v. Lockheed Missiles & Space Co. (1994) 29 Cal.App.4th 1718, 1724 [“Under California law ‘an employee must exhaust the . . . administrative remedy’ provided by the Fair Employment and Housing Act, by filing an administrative complaint with the California Department of Fair Employment and Housing (DFEH) . . . .”]; Williams v. City of Belvedere (1999) 72 Cal.App.4th 84, 90 [“Before a person may file a civil complaint alleging a violation of this statute, he or she must first file an administrative claim with the DFEH.”].

  75. Gov’t Code, § 12960, subd. (b).

  76. Gov’t Code, § 12960; Romano v. Rockwell Internat., Inc. (1996) 14 Cal.4th 479, 492 [“As for the applicable limitation period, the FEHA provides that no complaint for any violation of its provisions may be filed with the Department ‘after the expiration of one year from the date upon which the alleged unlawful practice or refusal to cooperate occurred . . . .'”].

  77. Surrell v. Cal. Water Serv. (9th Cir. 2008) 518 F.3d 1097, 1104 [“Although Surrell never filed a charge directly with the EEOC, her charge filed with the State Employment Department is deemed filed with the EEOC pursuant to a worksharing agreement between the two entities.”].

  78. 42 U.S.C. §§ 2000e-5(e)(1), 12117.

  79. Gov’t Code, § 12965, subd. (d)(2); 42 U.S.C. §§ 2000e-5(f)(1), 12117; Quinn v. U.S. Bank NA (2011) 196 Cal.App.4th 168, 187.

  80. Gov’t Code, § 12965, subd. (d)(2).

  81. 42 U.S.C. §§ 2000e-5(f)(1), 12117; Quinn v. U.S. Bank NA (2011) 196 Cal.App.4th 168, 187 [“A civil action on an ADA claim must be filed within 90 days after the EEOC issues a right-to-sue letter.”].