Fall 2000

The first step employers often take in both situations is to request medical documentation to ascertain if the employee has a "disability as defined under the Americans with Disabilities Act ("ADA") and California law. It was generally believed that the definition of disability under both the ADA and California law were the same. However, this is clearly no longer the case.

Governor Davis has signed into law AB 2222, which significantly strengthens disability discrimination protections for California employees, with a focus on broadening the definition of disability. Major components of the new California law are contrasted below with existing federal law (ADA).

A Major Life Activity Does Not Have to Be Substantially Limited

Under the ADA, a physical or mental impairment is a disability only if it "substantially" limits a major life activity. The EEOC has stated that in determining whether an individual is substantially limited in a major life activity, the court must look at:

(i) the nature and severity of the impairment,


(ii) the duration or expected duration of the impairment; and

(iii) the permanent or long-term impact or the expected permanent or long-term impact resulting from the impairment.

Thus, under federal law, if an impairment affects, but does not substantially limit, a major life activity, the court is likely to dismiss the complaint.

For example, in one federal court case, the court stated that although eating is a major life activity, simply having dietary restrictions because of a heart condition is not a substantial limitation in eating. (Webber v. Strippit, Inc. 8th Circuit 1999). As another example in a federal court case, the court noted that showing "substantial limitation" required the employee to allege more than that his walking "started getting real difficult." (Cain v. Airborne Express 6th Circuit 1999).

Under the new California law, by contrast, the impairment only has to make engaging in a major life activity "difficult." It is unclear how California courts will interpret the "difficult" language. However, the new law is designed to broaden the definition of disability. Thus, it is clear, that California courts will find many workers to be disabled because a major life activity is difficult, even though they would not be considered to be disabled under the ADA because the major life activity is not "substantially limited."

Under the new California law, by contrast, the impairment only has to make engaging in a major life activity "difficult." It is unclear how California courts will interpret the "difficult" language. However, the new law is designed to broaden the definition of disability. Thus, it is clear, that California courts will find many workers to be disabled because a major life activity is difficult, even though they would not be considered to be disabled under the ADA because the major life activity is not "substantially limited."

Mitigating Measures Must Be Ignored

The United States Supreme Court, when interpreting the ADA, decided that if an individual takes measures "to correct for or mitigate a physical or mental impairment, the effects of those measure - - both positive and negative - - must be taken into account when judging whether that person is 'substantially limited' in a major life activity." (Sutton v. United Airlines, Inc. 1999). Thus, if a mitigating measure (such as medication, eye-glasses, hearing aids, etc.) corrects a person's limitations so that he/she is not limited in a major life activity, that person is not likely disabled under the ADA.

Under the new California law, however, whether a person is disabled must be evaluated without regard to any mitigating measures. Thus, for example, although a particular diabetic may function perfectly normally with the use of insulin, an employer must evaluate whether or not that person could be disabled without the use of insulin. As another example, although an individual may be able to function with the use of a hearing aid, the employer must analyze whether the person could be considered disabled without the use of a hearing aid.

The Major Life Activity of Working

The ADA provides that an employee is disabled in the major life activity of working should their condition prevent them from working in a "broad range" of positions, not just a single job. Under the new California law, a person is disabled regardless of whether their limitation affects only a particular job or a broad range of jobs.

Renewed Protection for People With Cancer

The law also states that it is illegal to discriminate against someone who has cancer, or who had it in the past, regardless of whether it currently interferes with a major life activity.

What Should A California Employer Do?

Given the liberalization of California's definition of disability, employers must be careful before refusing to consider reasonable accommodation requests by employees who they do not believe have a "disability" under the law. Although companies usually may require employees to provide medical certification that they have disabilities, companies should consult with legal counsel before disqualifying an employee from the reasonable accommodation process because they believe their condition is not serious enough.

Once it is concluded that an individual is "disabled," the new law also imposes an additional obligation on employers. For years, employers have engaged in a dialogue or "interactive process" to determine whether a disabled applicant or employee requires a reasonable accommodation, and what options are potentially available. This process has now become an obligation under California law; you can be sued for failing to discuss an accommodation with a disabled employee or an applicant who requests an accommodation.

The new California law, AB 2222, goes in effect January 1, 2001.