You don't need to prove discriminatory animus.

When you think of disability discrimination, you may think you always need to prove that your employer has it in for you because you have a disability. You may think you need to prove that the reason they failed to accommodate you was because they hold feelings of ill will or hostility against you (or anyone else with your same medical or mental condition). 

But, in many disability discrimination cases you don’t need that “smoking gun” statement or even circumstantial proof your employer is really thinking: “let’s terminate Amy because I don’t want to see her limp around here with a cane,” or “I’ve been sick of hearing Adam talk about his back pain ever since his injury, let’s get rid of him.” 

Why don’t you need to prove such animosity? Because in cases where we already know that an employer’s motive for taking an adverse action was the actual or perceived physical or mental condition, the intent to treat you differently (i.e. discriminate) is already there. That’s the end of the case then, right? Not exactly.

When you examine discrimination cases, you do typically look to motive because you must prove intentional discrimination. What was the intent of the employer when they took certain actions? But, this is where folks get tripped up in some disability discrimination cases.

Comparing with race, religion, national origin, sex, or age (40 and over) discrimination cases, for example, you look to whether the action was taken because of those protected characteristics. The fight typically ensues over the reasons behind the employer’s adverse actions. Because it’s rare to have direct evidence that the reasons for the employers action were based on the protected characteristic, the employer will try to prove the reasons included A, B and C, all legitimate business reasons, while the employee tries to prove their protected characteristic substantially motivated the adverse action because the employer’s “stated reasons” were not true and hopefully they can point to some other evidence to prove the illegal motive. 

So yes, it is illegal to terminate you, fail to promote, pay you less, etc. because your employer holds some animosity towards you and your disability. For example, an employer may have an employee who uses a cane at work because of a disability. They permit them to use a cane as an accommodation. If that employee is then terminated and claims disability discrimination while the employer claims it was because of poor work performance, the question centers around the employer’s true motives. Are their stated reasons for termination bogus and a cover up for their true motives - hostility or ill will towards the employee’s disability? 

But not all disability discrimination cases must involve a termination or adverse action solely because of an employer’s ill will towards a person’s disability. 

So let’s switch the cane scenario around. What if the employer decides they won’t accommodate its employee and won’t permit them to use a cane at work. Since the employee can’t use a cane, they can’t walk, and since they can’t walk, they can’t work and essentially are terminated (we’ll assume here walking is an essential function of the job). Nobody claimed the employee was terminated for poor performance. The reason for the termination was because the employer alleged it could not accommodate.

In this scenario, we already know that the adverse actions (failing to accommodate and termination) were made because of a person’s actual or perceived disability. If that’s the case, disability discrimination cases will examine the role that the employee’s actual or perceived physical or mental condition played in the employer’s decision to implement an adverse action. Instead of arguing over whether the reasons were motivated by the employee’s actual or perceived condition, the cases focus on whether there were reasonable accommodations that would have allowed the employee to perform their essential job functions and whether a reasonable accommodation would have imposed an undue hardship on the employer. 

The employee does not need to prove ill will or animus motivated the adverse decision. Even if the employer made its decision based on good faith erroneous or mistaken beliefs, if the employee could have continued to work with or without a reasonable accommodation, they will be held liable.

California’s laws specifically protect employees “from discrimination due to an actual or perceived physical or mental impairment that is disabling, potentially disabling, or perceived as disabling or potentially disabling.” (California Code of Regulations section 12926.1, subd. (b)). California declared that the definitions of physical and mental disability “provide protection when an individual is erroneously or mistakenly believed to have any physical or mental condition that limits a major life activity.” (California Code of Regulations section 12926.1, subd. (d), italics added). 

This is in contrast with other discrimination cases, where a lack of animus and an honest but mistaken belief in legitimate reasons for an adverse action will preclude discrimination. 

Simply put, when the employer fails to accommodate when it could have provided a reasonable accommodation to permit the employee to perform their essential job functions and the accommodation would not impose an undue hardship on the employer, you have a case of disability discrimination. No animus/ill will required and no honest but mistaken beliefs are a defense.

DISCLAIMER: this information is general in nature and does not constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed.

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