A reasonable accommodation is an adjustment to the employee’s work environment that can enable the employee to perform the essential functions of the job. 105 the type of adjustment will vary depending on the employee’s job and the nature of the disability.Cognitive language learning strategies whether a proposed accommodation is reasonable is a question of fact, and can be the subject of much debate. 106

Reasonable accommodations often involve making existing facilities readily accessible to individuals with disabilities. 112 they can also include: job restructuring, reassignment to a vacant position, alterations to when tasks are to be completed, or changes to how functions are performed. 113 again, the best type of accommodation will vary from job to job.Cognitive language learning strategies

An employer is only required to provide a reasonable accommodation if the accommodation would permit the employee to perform the essential functions of a job.Cognitive language learning strategies meaning, california law generally permits an employer to terminate an employee if they are unable to perform the essential functions of the job, even with a reasonable accommodation. 118

cognitive language learning strategies

Importantly, essential functions differ from what courts call the “marginal functions” of a job. 122 marginal functions are those that: could be performed by another employee or could be performed in a different way. 123 A function is also considered marginal if the employer would need someone with the employee’s position even if the function was not being performed by that position. 124

cognitive language learning strategies

If the employee is pursuing federal relief, they must file a complaint with either the DFEH or the U.S. Equal employment opportunity commission (the EEOC) within 300 days of the alleged discriminatory act. 170 if either agency issues a right-to-sue letter, the employee will have 90 days to file a lawsuit in court based on federal claims. 171

cognitive language learning strategies

If the employer meets its burden, the employee will then be responsible for attacking the employer’s reasons or showing that they were merely a pretext for discriminatory behavior. 183 in pretext cases, the employee does not need to prove that the discriminatory motive was the sole motivation behind the employer’s action.Cognitive language learning strategies it is enough that there is a “causal connection” between the employee’s disability and the adverse employment decision. 184 special case: reasonable accommodation claims

cognitive language learning strategies

Like agency decisions, regulations promulgated by the department of fair employment and housing (the DFEH, for short) express an interpretation of california’s laws.Cognitive language learning strategies california courts have the authority to disregard that interpretation, but generally don’t do so. The DFEH’s regulations can be found in sections 10000 through 11141 of title two of the california code of regulations.Cognitive language learning strategies

If all else fails, sometimes an argument can be supported by an appeal to public policy. This kind of argument would argue that a court should give consideration to the consequences that would flow from a particular legal interpretation. 207 relevant considerations would include: the history of the law, and any expressions of legislative intent from when the law was adopted. 208 choosing federal or state court

cognitive language learning strategies

Gov. 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.Cognitive language learning strategies § 12201, subd. (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.”].Cognitive language learning strategies

Compare 42 USCS § 12102(1)(A) [requiring disabilities to substantially limit one or more major life activities] with gov. Code, § 12926 [requiring disabilities to merely limit a major life activity, or make it difficult]; see also 29 C.F.R.Cognitive language learning strategies § 1630.2(j) [defining when an impairment “substantially limits” a major life activity]; cal. Code regs., tit. 2, § 11065, subds. (d)(8), (l)(3) [defining when an impairment “limits” a major life activity].Cognitive language learning strategies

Reno v. Baird (1998) 18 cal.4th 640, 663 [“[W]e conclude that individuals who do not themselves qualify as employers may not be sued under the FEHA for alleged discriminatory acts.”]; jones v.Cognitive language learning strategies lodge at torrey pines partnership (2008) 42 cal.4th 1158, 1173 [“[W]e conclude that the employer is liable for retaliation under section 12940, subdivision (h), but nonemployer individuals are not personally liable for their role in that retaliation.”].Cognitive language learning strategies

Gov. Code, § 12940, subd. (j)(1) [“harassment of an employee, an applicant, an unpaid intern or volunteer, or a person providing services pursuant to a contract by an employee, other than an agent or supervisor, shall be unlawful if the entity, or its agents or supervisors, knows or should have known of this conduct and fails to take immediate and appropriate corrective action.”].Cognitive language learning strategies

Lab. Code, § 3353; antelope valley press v. Poizner (2008) 162 cal.App.4th 839, 852 [“[T]he right of the person to whom services are rendered to control the manner and means of accomplishing the desired result of those services is a significant factor for determining whether the person performing the work is an employee or an independent contractor.”].Cognitive language learning strategies

Gov. Code, §§ 12920, 12926; cal. Code regs., tit. 2, § 11065, subd. (h) [“‘genetic information,’ . . . Means genetic information derived from an individual’s or the individual’s family members’ genetic tests, receipt of genetic services, participation in genetic services clinical research or the manifestation of a disease or disorder in an individual’s family members.”].Cognitive language learning strategies

Gov. Code, § 12926, subd. (m)(1)(B)(iii) [“‘major life activities’ shall be broadly construed and includes physical, mental, and social activities and working.”]; cal.Cognitive language learning strategies code regs., tit. 2, § 11065, subd. (l)(1) [“major life activities include, but are not limited to, 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.”].Cognitive language learning strategies

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.Cognitive language learning strategies 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.”].Cognitive language learning strategies

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.”].Cognitive language learning strategies

Gov. Code, § 12940, subd. (a), (m); gelfo v. Lockheed martin corp. (2006) 140 cal.App.4th 34, 54 [“in addition to a general prohibition against unlawful employment discrimination based on disability, FEHA provides an independent cause of action for an employer’s failure to provide a reasonable accommodation for an applicant’s or employee’s known disability.”].Cognitive language learning strategies

Hanson v. Lucky stores, inc. (1999) 74 cal.App.4th 215, 228 [“[T]he employer providing the accommodation has the ultimate discretion to choose between effective accommodations, and may choose the less expensive accommodation or the accommodation that is easier for it to provide.” (quotation marks omitted.)], quoting hankins v.Cognitive language learning strategies the gap, inc. (6th cir. 1996) 84 F.3d 797, 800–801.

Green v. State (2007) 42 cal.4th 254, 258 [“[T]he FEHA requires employees to prove that they are qualified individuals under the statute just as the federal ADA requires.”]; cal.Cognitive language learning strategies code regs., tit. 2, §§ 11065, subd. (o) [“‘ qualified individual,’ for purposes of disability discrimination under california code of regulations, title 2, section 11066, is an applicant or employee who has the requisite skill, experience, education, and other job-related requirements of the employment position such individual holds or desires, and who, with or without reasonable accommodation, can perform the essential functions of such position.”], 11066, subd. (a) [“an applicant or employee has the burden of proof to establish that the applicant or employee is a qualified individual capable of performing the essential functions of the job with or without reasonable accommodation.”].Cognitive language learning strategies

Prilliman v. United air lines, inc. (1997) 53 cal.App.4th 935, 947; cal. Code regs., tit. 2, § 11065, subd. (r) [“‘undue hardship’ means, with respect to the provision of an accommodation, an action requiring significant difficulty or expense incurred by an employer or other covered entity, when considered under the totality of the circumstances in light of the following factors: . . . .”].Cognitive language learning strategies

See brundage v. Hahn (1997) 57 cal.App.4th 228, 237 [“an adverse employment decision cannot be made ‘because of’ a disability, when the disability is not known to the employer.Cognitive language learning strategies thus, in order to prove an ADA claim, a plaintiff must prove the employer *237 had knowledge of the employee’s disability when the adverse employment decision was made.”].Cognitive language learning strategies

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.”].Cognitive language learning strategies

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.Cognitive language learning strategies 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.”].Cognitive language learning strategies

Gov. Code, § 12965, subd. (b) [“if a civil action is not brought by the department within 150 days after the filing of a complaint, or if the department earlier determines that no civil action willbe brought, the department shall promptly notify, in writing, the person claiming to be aggrieved that the department shall issue, on his or her request, the right-to-sue notice.”].Cognitive language learning strategies

Gov. 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 . . . .'”].)

cognitive language learning strategies

Hersant v. Dep’t of social services (1997) 57 cal.App.4th 997, 1002; tex. Dep’t of cmty. Affairs v. Burdine (1981) 450 U.S. 248, 254 [101 S.Ct. 1089, 1094] [“if the trier of fact believes the plaintiff’s evidence, and if the employer is silent in the face of the presumption, the court must enter judgment for the plaintiff because no issue of fact remains in the case.”].Cognitive language learning strategies

Auto equity sales, inc. V. Superior court (1962) 57 cal.2d 450, 455 [“under the doctrine of stare decisis, all tribunals exercising inferior jurisdiction are required to follow decisions of courts exercising superior jurisdiction.Cognitive language learning strategies otherwise, the doctrine of stare decisis makes no sense. The decisions of this court are binding upon and must be followed by all the state courts of california.”].Cognitive language learning strategies

People v. Bradley (1969) 1 cal.3d 80, 86 [“[A]lthough [the supreme court of california is] bound by decisions of the united states supreme court interpreting the federal constitution [citations], [the supreme court of california is] not bound by the decisions of the lower federal courts even on federal questions.Cognitive language learning strategies however, they are persuasive and entitled to great weight.”].

See, e.G., mendoza v. Town of ross (2005) 128 cal.App.4th 625, 635; reno v. Baird (1998) 18 cal.4th 640, 647 [“because the antidiscrimination objectives and relevant wording of title VII of the civil rights act of 1964 (title VII) [citations], the age discrimination in employment act (ADEA) [citations] and the americans with disabilities act (ADA) [citations] are similar to those of the FEHA, california courts often look to federal decisions interpreting these statutes for assistance in interpreting the FEHA.”].Cognitive language learning strategies

Dyna-med, inc. V. Fair employment & housing com. (1987) 43 cal.3d 1379, 1417 [“although the ultimate interpretation of a statute rests with the courts, consistent administrative construction of a statute over many years, particularly when it originated with those charged with putting the statutory machinery into effect and enforcing it, is entitled to great weight and will be followed unless clearly erroneous.”].Cognitive language learning strategies