Employees and differently-abled job applicants are entitled to equal opportunities in the workplace. Although their disability may impact their unassisted ability to perform a particular job, many times, a reasonable accommodation can make it possible for them to perform at the required levels for a given position. Such accommodations can include improving accessibility in the work area, providing assistive equipment or software, allowing a flexible work schedule, or modifying the position’s tasks.
Under federal and state disability law, employers must provide reasonable accommodations to disabled employees and applicants so long as the accommodation does not place an undue hardship on the employer. An undue hardship is an accommodation that will cause the employee to experience a significant expense or difficulty. If the requested accommodation causes such hardship, the company can deny the request for the reasonable accommodation.
Whether a requested accommodation creates an undue hardship is a question of facts and circumstances. A court determining whether an undue hardship exists will look at the following:
The employer is not required to take the initiative; instead, the employee or applicant must request a reasonable accommodation. If you do not request accommodation and perform poorly, even if the performance issue results from your disability, you can be terminated.
If, after your request, no undue hardship exists to provide your reasonable accommodation, your employer must take steps to do so. If the employer does not make the reasonable accommodation, you can file a complaint under the federal Americans with Disabilities Act (ADA). You file a complaint with the Equal Employment Opportunity Commission (EEOC), the federal agency that enforces the ADA. State complaints for disability discrimination under state law (California Fair Employment and Housing Act – FEHA) get filed with the state Department of Fair Employment and Housing (DFEH).
Before filing a complaint with either EEOC or DFEH, you must request reasonable accommodation from your employer. If no accommodation gets provided, you can file your complaint, usually with a statute of limitations of only one year.
It’s important to note that the failure to supply a reasonable accommodation may also be disability discrimination, giving you potential grounds for a civil lawsuit. Further, your employer may not retaliate against for because you requested a reasonable accommodation. Retaliation can include discrimination in benefits, pay, promotion, wrongful termination, harassment or failing to prevent harassment, bullying, and reducing your pay below minimum wage.
So, how do you ask for reasonable accommodation? DFEH actually provides a form. Using the recommended form helps to ensure that you include all the required information and don’t inadvertently give the employer an easy way to ignore your request. You may also want to contact a disability attorney from Olivier & Schrieber LLP to assist you if you have difficulty obtaining your reasonable accommodation or think that discrimination may be occurring.
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