ADA

14 Feb If someone were denied employment and more qualified for the job than the applicant who was successful in getting the job, how does one prove that case?

Let’s first look at a situation where an applicant with a disability objectively is not as qualified as a person without a disability. Let’s assume that their qualifications are not less than a person without a disability because of their disability, but it’s because of some other factor such as education or skill. The employer doesn’t have to give preference to the person with a disability if that person with a disability is objectively less qualified than the person without a disability. If the employer hires the person without a disability over someone with a disability who is more qualified, that, in and of itself, can be evidence of discrimination. Rarely is there direct evidence of discrimination in disability cases or other cases. It is extremely rare where you would have evidence of an employer writing an e-mail or sending a message to the effect of, “I don’t want to hire that person because of their disability,” because employers are a lot savvier than that. You have to show through circumstantial evidence that it is more likely than not that you, as a person with a disability, did not get a job because of your disability. There could be stray comments to prove discrimination on the part of an employer to hire you, you may have evidence of comments that were made by an employer or supervisor where they made fun of people with disabilities, where they treated other people with disabilities poorly, or other things to show that the person had a discriminatory animus toward people with disabilities. There is very rarely any direct evidence of discrimination, but with enough circumstantial evidence you may be able to overcome the burden of proof to prevail on a disability discrimination claim. In California law, and more recently in the California Supreme Court, it was held that the disability has to be a substantial motivating factor for the employer’s decision not to hire or to fire, or do some other adverse employment action. Therefore, you have to show that the employer was substantially motivated by your disability. That raises the bar a little bit. It used to just be simple motivation: Your prospective employer could have ten reasons why they didn’t hire you, and one of the reasons of those ten was your disability, and the other nine were non-protected reasons. Now, the bar is a little bit higher. In the past, that was enough to win on a disability discrimination case. Now, it’s got to be a little bit more than that; it has to be a substantial motivating factor. If you have been refused a job because of a disability or a need for a disability accommodation, contact an employment lawyer today at the Khadder Law Firm for a free initial consultation.  ...

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12 Feb Calculating Work-Life Expectancy Damages

Economists can prove to be indispensable in the calculation of future lost income damages for someone in a disability case, and we will bring them in if necessary. Part of the valuation of future lost damages is a plaintiff’s work-life expectancy. Unfortunately, if a person has a medical condition reduces his or her work-life expectancy, future lost income may be affected by that. This unfortunate part of the calculation cruelly ironic since it is because of that medical condition that they lost their job in the first place. Ultimately, these are decisions that will be made by a jury and would have to hold up in court, but the court will take into consideration a number of factors including the ability to secure another job, when determining damages. If you have been wrongfully terminated because of a disability or a need for a disability accommodation, contact an employment lawyer today at the Khadder Law Firm for a free initial consultation....

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05 Feb When Disability Discrimination Limits a Person’s Future Employability

The cruel thing about disability discrimination, both for people who are already disabled or become disabled while employed with a specific employer, is that it is not easy to get another job, despite the fact that there are laws that prohibit disability discrimination for applicants for employment. It still happens and employers do get away with it, especially if the disability is obvious. If someone is wrongfully terminated because of disability discrimination, one could argue that the damage goes beyond the income they lost from being fired because it would be more difficult to find another job. Similarly, someone who is wrongfully terminated because of a disability could arguably experience substantial emotional distress, and in that case, emotional distress damages could possibly be recovered. If you have been wrongfully terminated because of a disability or a need for a disability accommodation, contact an employment lawyer today at the Khadder Law Firm for a free initial consultation....

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01 Feb Suing an Employer for Failing to Accommodate a Disability

In the instance when the employer refuses to accommodate your disability and you are put in a position where you have to sue, you may be able to sue your employer for your job back or damages? You may also be able to sue to get an employer to provide you with a reasonable accommodation and/or you can sue for your economic and emotional damages that result from discrimination or failure to accommodate. Most disability cases involve wrongful termination because of disability discrimination. In those cases, usually the remedy is to pay the wrongfully terminated employee their lost income, both past lost income for all the time up to and including the judgment at a trial, and then future lost income to a reasonable degree for any time after the trial judgment that a person may be without employment. It is important in a trial to show future lost damages or income. Usually the court will require an expert to discuss the various aspects of how to calculate the loss of income including your work-life expectancy and your life expectancy. That can get kind of complicated, but it is a recovery that may be available to an employee who is wrongfully terminated. If you have been wrongfully terminated because of a disability or a need for a disability accommodation, contact an employment lawyer today at the Khadder Law Firm for a free initial consultation.  ...

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23 Jan How specific do I have to be with my employer about what my mental disability is?

Both the ADA and the FEHA don’t require an employee to disclose the specifics of their disability. You don’t have to provide your employer with a detailed diagnosis of your condition. However, your employer is entitled to know how your disability affects your ability to perform your job(s). One of the important reasons why an employer has a right to know how your disability affects your ability to perform your job is that employers have an obligation to provide a reasonable accommodation so that a disabled employee can perform the essential functions of his or her job. While your employer doesn’t have a right to know the name of what you suffer from, they do have a right to know what your disability limits, in terms of the essential functions of your job. If you have experienced discrimination by your employer because of a disability, or your employer fails to provide you with a reasonable accommodation for your disability, contact an employment lawyer today at the Khadder Law Firm for a free initial consultation....

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