Take the First Step
February 10, 2025 · Benjamin J. Treger
The Violations Employers Commit by Doing Nothing
Disability discrimination does not always look like someone saying something cruel about a person’s condition. More often, and more insidiously, it looks like an employer doing nothing at all.
Under California’s Fair Employment and Housing Act (FEHA), employers have an affirmative obligation to engage in a good-faith interactive process with employees who have disabilities, and to provide reasonable accommodations that allow the employee to perform the essential functions of the job. When employers skip this process, ignore accommodation requests, or quietly push disabled employees toward the exit, that is discrimination, even if no one ever said a discriminatory word.
California’s definition of disability is significantly broader than the federal standard under the Americans with Disabilities Act. Under FEHA, a disability is any physical or mental condition that limits a major life activity. Note the word “limits,” not “substantially limits” as required under federal law. This lower threshold means many more conditions qualify for protection in California.
Protected conditions include, but are far from limited to: chronic back pain, carpal tunnel syndrome, diabetes, heart disease, cancer, HIV/AIDS, epilepsy, multiple sclerosis, Crohn’s disease, lupus, arthritis, migraines, depression, anxiety disorders, PTSD, bipolar disorder, ADHD, autoimmune conditions, and recovery from surgery or serious illness. Temporary conditions that limit a major life activity are also covered.
The law also protects employees who are perceived as having a disability, even if they do not actually have one. If your employer treats you as disabled (reduced duties, exclusion, termination) based on its own assumptions about your health, you have a claim regardless of your actual medical status.
When an employer knows or should know that an employee has a disability that may require accommodation, the law triggers a mandatory process. Both parties must engage in a timely, good-faith interactive dialogue to identify effective accommodations. This is not optional. It is not a suggestion. It is a legal requirement, and the employer’s failure to engage is, by itself, a separate and actionable violation of FEHA.
What the interactive process should look like: a genuine conversation about the employee’s specific limitations, the essential functions of the job (as distinguished from marginal or incidental duties), and what accommodations might enable the employee to perform those essential functions. The process should be collaborative, not adversarial. The employer should explore multiple options and consider the employee’s preferences, though it is not required to adopt the employee’s first choice.
What the interactive process should not look like: ignoring the request entirely. Telling the employee to “figure it out.” Conducting a single perfunctory meeting and declaring that no accommodation is possible. Requiring the employee to identify all possible accommodations without any employer participation. Treating the process as a box to check rather than a genuine effort to find a solution.
The range of possible accommodations is broad and depends on the individual situation. Common examples include: modified work schedules (flexible start times, compressed workweeks, reduced hours during flare-ups), reassignment to a vacant position the employee is qualified for, ergonomic equipment or assistive technology, additional or longer breaks, permission to work remotely, leave of absence beyond FMLA/CFRA entitlements, modification of non-essential job duties, a quieter or more accessible workspace, and permission to bring a service animal.
The accommodation must be effective, but it does not need to be perfect. And the employer cannot refuse an accommodation by claiming “undue hardship” without conducting a genuine, individualized assessment of the specific accommodation requested, its actual cost, and its impact on business operations. Blanket refusals, or refusals based on hypothetical costs that have never been calculated, do not satisfy this standard.
Some of the most common and most underlitigated disability discrimination claims involve conditions that are not immediately visible. An employee with depression may appear functional to a manager who does not understand the condition. An employee with an autoimmune disorder may have unpredictable symptom cycles, leading a supervisor to question whether the disability is “real.” An employee with anxiety or PTSD may need accommodations that seem unusual to a company unfamiliar with mental health conditions.
The law does not require a disability to be visible, constant, or severe to warrant protection. An employer that assumes an employee is faking, exaggerating, or “not that sick” is making a legal mistake that can generate significant liability, because that assumption substitutes the employer’s judgment for a medical professional’s and bypasses the interactive process entirely.
The most frequent violations are not dramatic acts of bias. They are failures of process that reflect indifference, convenience, or ignorance of the law. Ignoring a request for accommodation and hoping the employee stops asking. Deflecting by telling the employee to “just take FMLA” instead of engaging in the interactive process (FMLA leave and reasonable accommodation are separate obligations). Requiring the employee to be “100% healed” or to have “no restrictions” before being allowed to return. Terminating an employee while they are on medical leave rather than exploring whether they can return with accommodations. Treating the accommodation request itself as evidence that the employee “can’t handle the job” and using it as a basis for termination. Retaliating against the employee for making the request by increasing scrutiny, changing their performance reviews, or isolating them from the team.
Each of these can give rise to multiple simultaneous claims: disability discrimination, failure to accommodate, failure to engage in the interactive process, and retaliation. When an employer commits several of these violations in sequence, the combined liability can be substantial.
Disability discrimination claims under FEHA can result in lost wages (past and future), emotional distress damages, punitive damages, and attorneys’ fees. The emotional distress component is often particularly significant in disability cases because the discrimination frequently occurs during a period of medical vulnerability, when the employee is already dealing with the physical and psychological burden of their condition. Being fired, demoted, or pushed out during that period compounds the harm in ways that juries understand and take seriously.
You generally have three years from the date of the discriminatory act to file a complaint with the California Civil Rights Department. For failure-to-accommodate and interactive-process claims, the violation may be ongoing, which can extend the filing window. Consult an attorney to understand which deadlines apply to your specific situation.
If your employer failed to accommodate your disability, refused to engage in the interactive process, or terminated you because of a medical condition, you may have a claim. Contact Treger Legal for a free consultation.
This post is for informational purposes only and does not constitute legal advice. Consult with a qualified employment attorney about your specific situation.