Disability

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....

18 Feb Disability Discrimination and Continuing Employment – Is Mediation the Answer?

Posted at 09:54h in Accomodations, Calculating Damages, California Law, Damages, Disability, Disability Discrimination, Employment Discrimination, Failure to Accommodate, FEHA, FMLA, Hiring Preference, Long Term Disability, Mediation, Protected Categories, Remedies, Settlement, Short Term Disability, Trial, Wrongful Termination

Most likely, if somebody is still employed but they experience disability discrimination other than termination; for instance, their job duties or responsibilities are reduced, they get demoted or their pay is reduced simply because they have a disability, then you may still have a disability discrimination case that is worth pursuing. It is awkward to say the least, however, to sue an employer when you are still working for the employer. That’s not to say it doesn’t happen, but in those cases, often the best course of action for all parties involved, especially the employee with the disability, is to try and resolve the case short of going to court or having a trial. Mediation is a voluntary process. The parties don’t have to accept a settlement. But, there is a lot more room for creativity if a case is settled in mediation or other negotiations as opposed to having to take a claim to trial and get a judgment. If you have been discriminated on the basis of your disability by your current 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....

09 Feb Is Future Employability Something That Courts Consider When Calculating Damages?

Posted at 09:44h in Damages, Disability, Disability Discrimination, Emotional Distress, Employment Discrimination, Failure to Accommodate, Long Term Disability, Loss of Employment, Loss of Income, Mental Disability, Short Term Disability, Work-Life Expectancy, Wrongful Termination

Possibly. The key to this issue is that no matter who you are or what disability you have, and for whatever the reason you are wrongfully terminated, you have an obligation to try and mitigate your damages. This means that if you’re terminated, you have to look for another job so that your damages don’t keep growing and growing. For a client who is obviously disabled and would likely have a hard time finding another job, I would argue that the employer who broke the law and engaged in discrimination should be, to a certain extent, responsible for the employee’s inability to secure another job. But it is important for a person who is wrongfully terminated because of a disability to make a good-faith effort to find a comparable job. 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....