Medical Condition

21 Feb Possible Mediation Outcomes

Posted at 09:58h in Accomodations, Calculating Damages, CFRA, Damages, Disability, Disability Discrimination, Emotional Distress, Employment Discrimination, Failure to Accommodate, FEHA, FMLA, Hiring Preference, Leave of Absence, Long Term Disability, Loss of Employment, Loss of Income, Mediation, Medical Condition, Mental Disability, Physical Disability, Re-Employment, Remedies, Resignation, Settlement, Short Term Disability, Trial, Work-Life Expectancy, Wrongful Termination

One of the possibilities in mediation settlement is for the employer to agree to reinstate the employee to the position that they held before they were demoted, or to increase the employee’s pay back to their original pay before their pay was reduced. Mediation can also provide the employee with money for any economic harm or emotional distress that they suffered because of discrimination. For example, if you were paid less, you could, in a mediation, get the employer to agree to reimburse you for the difference of what you were originally paid with what they were paying you when they reduced your salary. However, if you sue your employer, chances are there is going to be some, if not a lot, of friction. Often, in a mediation, an employer will demand, as part of a settlement that involves a payment of substantial money, that the employee resign from their employment and agree never to seek re-employment with that employer in the future. That is not always easy to accept, but if the employer is willing to pay enough money to settle the case, then it may be worth it to resign from your job and agree never to reapply for any job with that same employer. That’s a tough decision to make. Some people would rather have steady income than take a big lump sum of money and have to find a new job. Each case is different, and you have to weigh the risks and benefits of each decision. It is important to consider all of these things if you decide to take legal action against your employer while still employed. For people who have been terminated, the decision is much easier. If they have been wrongfully terminated, there is not going to be the issue of awkwardness or friction at the workplace, because they are no longer there. That makes the decision of taking legal action easier. But, just because you are still employed, by no means should you automatically give up your legal rights to stay with the employer. If you have been discriminated on the basis of your disability by your employer, contact an employment lawyer today at the Khadder Law Firm for a free initial consultation....

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?

Posted at 09:51h in Accomodations, ADA, Calculating Damages, California Law, California Supreme Court, CFRA, Damages, Disability, Disability Discrimination, Emotional Distress, Employment Classifications, Employment Discrimination, Failure to Accommodate, FEHA, FMLA, Hiring Preference, Long Term Disability, Loss of Employment, Loss of Income, Medical Condition, Mental Disability, Protected Categories, Undue Burden, Undue Hardship, Work-Life Expectancy

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. ...

12 Feb Calculating Work-Life Expectancy Damages

Posted at 09:46h in Accomodations, ADA, Calculating Damages, California Law, CFRA, Damages, Disability, Disability Discrimination, Economists, Emotional Distress, Employment Discrimination, Essential Functions, Failure to Accommodate, FEHA, FMLA, Leave of Absence, Life Expectancy, Loss of Employment, Loss of Income, Major Life Activity, Medical Condition, Work-Life Expectancy, Wrongful Termination

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....

02 Dec Degenerative or Progressive Conditions: FEHA’s Protection of Employees from Future Discrimination

Posted at 10:10h in Accomodations, ADA, Calculating Damages, California Law, CFRA, Congenital Heart Defect, Damages, Degenerative or Progressive Conditions, Disability, Disability Discrimination, Emotional Distress, Employment Discrimination, Essential Functions, Failure to Accommodate, FEHA, FMLA, Hiring Preference, HIV/AIDS, Life Expectancy, Litigation - Suing Your Employer, Long Term Disability, Loss of Employment, Loss of Income, Major Life Activity, Mediation, Medical Condition, Mental Disability, Protected Categories, Remedies, Resignation, Settlement, Trial, Undue Burden, Undue Hardship, Work-Life Expectancy, Wrongful Termination

The FEHA prohibits discrimination of physical or mental disabilities that actually exist, or that they believe to exist, even though it doesn’t actually exist. It is also unlawful for an employer to discriminate against an employee who doesn’t currently have a disability but may have a disabling condition sometime in the future. For instance, if an employee has HIV, but not AIDS, they may not presently have any limits on their major life activities. But, if the employer knows that at some point in the future they could become disabled by AIDS, then they might discriminate against that employee. The FEHA clearly prohibits that. Similarly, if someone has some kind of congenital heart disorder, it may not presently constitute a disability because it doesn’t cause limits on their major life activities. But, if the employer believes that in the future it may, they may also discriminate against that employee, and they are prohibited from doing so. There are other examples, but the main point is that if you have an issue or condition that is not presently disabiling, but may become disabling sometime in the future, the fact that it may become disabling prevents an employer from discriminating against you. If you have been discriminated on the basis of your disability by your employer, or future potential disability, contact an employment lawyer today at the Khadder Law Firm for a free initial consultation....