Understanding Disability in Discrimination

Employers are liable for discriminating against that which they perceive to be a disability. Under California law, employers are liable for perceived disabilities, California Government Code Section 12940. Discrimination is often based upon stereotypes. Perceived disability discrimination exists when somebody has a medical condition or impairment which allows them to work with accommodation, but the employee insists they cannot. Perceived disability discrimination could also exist if an employee did not have anything wrong with them, but the employer asserted that they did.It is wrongful termination to terminate an employee based upon anything resulting from a workers’ compensation injury. Employers may not fire employees because they have to take time off for medical treatment. Nor can employees be fired for filing a worker’s compensation claim.Other examples of wrongful termination and/or retaliation due to a work related injury include: 1) firing an employee for not being able to come back to work when their doctor has them off; 2) not allowing an employee to conclude their medical treatment prior to terminating them; 3) requiring the employee to show up to work even though their doctor has put the employee off work; 4) failing to properly dispute the level of treatment being prescribed to the employee.An employee suing for termination is entitled to all wages and benefits (including vacation pay) she would have reasonably earned had the employee not been terminated minus what wages the employee earned, or with reasonable effort, might have earned, This means that an employee can be entitled to lost wages, at their former rate of pay, until they find a new job. If the new job pays less, the measure of damages is the difference in pay between the new job and the old job.In the case of lost medical benefits, the measure of damage is what it costs to replace opposed to what the benefits the employer. Replacement costs include the amount of COBRA continuation, or the purchase of medical benefits. Employees may claim lost medical benefits until they find a job that gives them medical benefits.Employees must make efforts to minimize and make less (mitigate) their damages. It is the employer’s burden to show Plaintiff did not adequately mitigate her damages. In doing so, the employer must show: 1) equivalent positions were available which plaintiff could have discovered and for which plaintiff was qualified; 2) plaintiff failed to exercise reasonable diligence in seeking such a position.Do not let the employer claim you failed to mitigate damages. Print out or copy all documents showing you looked for work. Also save any reject letters you get. Make sure you are signed up for any internet services where employees looking for your particular type of work look for work.