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Disability Discrimination: Important Differences between the California Fair Employment and Housing Act (FEHA) and the federal Americans with Disabilities Act (ADA)

This guide is for information only and is not legal advice. Legal advice must be tailored to specific facts. This guide is based on general legal principles and does not address all possible claims, exceptions or conditions related to the subject matter discussed.

by Marilynn Mika Spencer

This guide summarizes some important differences between the employment-related disability laws in the California Fair Employment and Housing Act, Government Code sections 12900, et seq. (FEHA) and the federal Americans with Disabilities Act of 1990, 42 U.S.C. sections 12101 et seq. (ADA), as of November 2011.

Minimum number of employees

FEHA: 5
For harassment only: 1

ADA: Private employer: 15
Government employer: no minimum

Disability defined


FEHA: A person has a disability if he or she:
  1. Has a physical or mental impairment that limits one or more major life activities; or
  2. Has a history of such impairment; or
  3. Is regarded as having such a disability.
  4. ADA: A person has a disability if he or she:

    1. Has a physical or mental impairment that substantially limits one or more major life activities; or
    2. Has a history of such impairment; or
    3. Is regarded as having such a disability.

    Work as a major life activity

    FEHA: To be limited in the major life activity of working, an individual must be limited in performing the requirements of one particular job or more.

    ADA: To be limited in the major life activity of working, an individual must be significantly restricted in the ability to perform a class of jobs or a broad range of jobs in various classes, as compared to the average person with comparable training, skills and abilities. Inability to perform a single, particular job does not constitute a substantial limitation in the major life activity of working.

    Medical or psychological exam or inquires before the job is offered

    FEHA: An employer cannot ask a job applicant to undergo a medical exam before offering a job. Unless the applicant asked for reasonable accommodation during the hiring process, an employer cannot ask about a disability or the nature of a disability. An employer may ask about an applicant’s ability to perform essential job functions.

    ADA: An employer cannot ask a job applicant to undergo a medical exam before offering a job. Unless the applicant asked for reasonable accommodation during the hiring process, an employer cannot ask about a disability or the nature of a disability. An employer may ask about an applicant’s ability to perform essential job functions. With some limitations, an employer may ask an applicant with a disability to describe or demonstrate how he or she would perform these functions.

    Medical or psychological exam or inquires after the job is offered but before work has started

    FEHA: An employer may require a medical or psychological exam or ask medical of psychological questions provided the exam or inquiry is job-related, consistent with business necessity and all entering employees in the same job class must undergo the same exam or inquiry.

    ADA: An employer may condition a job offer on successfully passing a post-offer medical exam or inquiry if this is required of all entering employees in the same job class. The exam or inquiry does not need to be job related or consistent with business necessity. An employer may not refuse to hire a person with a disability based on the results of the medical exam unless the reason for rejection is job-related and justified by business necessity.

    Medical or psychological exam or inquires after the job has started

    FEHA: An employer may require exams and inquires if they are jobrelated and consistent with business necessity. An employer may conduct medical exams if part of a voluntary employee health program.

    ADA: Employer may require exams and inquires if job-related and consistent with business necessity. May conduct medical exams if: evidence of job performance or safety problem; required by federal law; for fitness-for-duty examination; or voluntary health program.

    Enforcement agency

    FEHA: Department of Fair Employment and Housing

    ADA: Equal Employment Opportunity Commission

    Remedies

    FEHA: A successful plaintiff is entitled to be made whole for all losses and may recover compensatory damages (out of pocket expense) and emotional distress damages. Potential remedies include job reinstatement, back pay, front pay (projected loss of future earnings), and attorney’s fees and costs.

    Compensatory damages: not limited.

    ADA: A successful plaintiff is entitled to be made whole for all losses; recover compensatory damages (out of pocket expense) and emotional distress damages. Potential remedies include job reinstatement, back pay, front pay (projected loss of future earnings), and attorney’s fees and costs.

    Compensatory damages are limited as follows:

    • For employers with 15-100 employees, the limit is $50,000.
    • For employers with 101-200 employees, the limit is $100,000.
    • For employers with 201-500 employees, the limit is $200,000.
    • For employers with more than 500 employees, the limit is $300,000

    Employer can avoid liability by engaging in good faith efforts to identify accommodation.

    Time limit to file claim with administrative enforcement agency

    FEHA: 365 days from the date of discrimination or failure to accommodate.

    ADA: In states with a fair employment practices law (such as California), 300 days from the date of discrimination or failure to accommodate. In all other states, 180 days from the date of discrimination or failure to accommodate.

    Time limit to file lawsuit following right-to-sue letter from administrative agency

    FEHA: 365 days from date of right-to-sue letter.
    ADA: 90 days from date of receipt of right-to-sue letter

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