The Job Accommodation Network (JAN) provides information regarding job accommodations and the Americans with Disabilities Act (ADA) to callers throughout the United States, but receives more inquiries from individuals in California than from any other state. In 2000 alone, JAN provided information on accommodation cases to 3,628 California callers. One of the reasons that so many Californians call JAN might be because California has a progressive state law that protects the rights of California citizens with disabilities. Although the ADA is a federal law that provides a floor of protection to employees with disabilities throughout the U.S., many states have state laws that provide more protection than the ADA; California is one of these states. On January 1, 2001, amendments to the California Fair Employment and Housing Act (FEHA), which governs the prohibition of disability discrimination, took effect. These amendments, called California Assembly Bill (AB) 2222 or the Prudence Kay Poppink Act, revised definitions in the FEHA provisions prohibiting disability based discrimination. Key differences exist between the employment provisions of the ADA and those in AB 2222.

From the text of AB 2222:

"Under the California [FEHA] it is an unlawful employment practice for an employer or employment agency to refuse to hire or employ a person or otherwise discriminate because of specified personal characteristics, including a mental or physical disability or medical condition. The act defines mental disability for its purposes to include any mental or psychological disorder, as specified, and defines physical disability to include, among other things, any physiological disease, disorder, condition, disfigurement, or loss that affects specified body systems and limits an individual's ability to participate in major life activities."

AB 2222 specifically amends several definitions under the California FEHA. The following highlights some of the most predominant differences:

Employer
Under AB 2222, "employer" includes any person regularly employing five or more persons; this does not include a religious association or corporation not organized for private profit. Under the ADA, employer includes entities with 15 or more employees.

Physical or Mental Disability
AB 2222 defines physical disability as "among other things, any physiological disease, disorder, condition, disfigurement, or loss that affects specified body systems and limits an individual's ability to participate in major life activities." AB 2222 defines mental disability as "any mental or psychological disorder, as specified." The California amendments expressly refer to certain physical and mental impairments as disabilities that are protected. AB 2222 states that "physical and mental disabilities include, but are not limited to, chronic or episodic conditions such as HIV/AIDS, hepatitis, epilepsy, seizure disorder, diabetes, clinical depression, bipolar disorder, multiple sclerosis, and heart disease." In contrast, the ADA provides a broad definition of disability, which "means, with respect to an individual (1) a physical or mental impairment that substantially limits one or more of the major life activities of such individual; (2) a record of such an impairment; or (3) being regarded as having such an impairment."

Medical Condition
In addition to individuals who have "physical or mental disabilities," AB 2222 states that specific medical conditions are protected. Under the amendments, the term "medical condition" includes: (1) any health impairment related to or associated with a diagnosis of cancer or a record or history of cancer; and (2) genetic characteristics, which includes individuals who have identifiable genes and chromosomes and inherited characteristics. Under the ADA, medical conditions are not separately defined.

Limits
The California Legislature "determined that the definitions of ‘physical disability’ and ‘mental disability’ under the law of this state require a ‘limitation’ upon a major life activity, but do not require, as does the [ADA], a ‘substantial limitation.’" Deleting the word "substantially" from the definition of disability makes it easier for individuals, particularly those with short-term medical conditions, to establish a disability under California's state law.

Mitigating Measures
Under AB 2222, the term “limits” excludes the consideration of mitigating measures, which typically includes medications, glasses for individuals with poor vision, and insulin treatments for individuals with diabetes among others. This is directly contrary to the Supreme Court’s interpretation of the ADA, which held that the determination of whether or not an employee has a disability should be made by considering the mitigating measures. See Sutton et al. v. United Airlines, Inc. (1999), and Murphy v. United Parcel Service, Inc. (1999).

Major Life Activities
Under AB 2222, "major life activities" are broadly interpreted and "include physical, mental, and social activities and working." "Working" is considered a major life activity "regardless of whether the actual or perceived working limitation implicates a particular employment or a class or broad range of employments." Under the ADA, a non-inclusive listing of "major life activities" includes "functions such as caring for oneself, performing manual tasks, walking, seeing, hearing, speaking, breathing, learning, and working." Under the ADA, "the term 'substantially limits' means significantly restricted in the ability to perform either a class of jobs or a broad range of jobs in various classes as compared to the average person having comparable training, skills and abilities. The inability to perform a single, particular job does not constitute a substantial limitation in the major life activity of working."

Interactive Process
AB 2222 "makes it an unlawful employment practice for an employer or other entity covered by the act to fail to engage in a timely, good faith, interactive process to determine effective reasonable accommodations, if any, at the request of an employee or applicant with a known disability." This infers that employers have an affirmative duty to explore accommodations, whereas the ADA states that it "may be necessary for the covered entity to initiate an informal, interactive process with the qualified individual with a disability in need of the accommodation." The Ninth Circuit, which oversees the interpretation of the ADA in California, has ruled that "[t]he expressed choice of the applicant or employee shall be given primary consideration unless another effective accommodation exists that would provide a meaningful equal employment opportunity." See Barnett v. U.S. Air (2000).

Medical Examinations
Under AB 2222, "an employer or employment agency may require a medical or psychological examination or make a medical or psychological inquiry of a job applicant after an employment offer has been made but prior to the commencement of employment duties, provided that the examination or inquiry is job-related and consistent with business necessity and that all entering employees in the same job classification are subject to the same examination or inquiry." The ADA allows disability-related questions and medical examinations at the post-offer stage that are not related to the job.

Direct Threat
AB 2222 specifically states that an employer does not have to provide an accommodation where an individual cannot perform “duties in a manner that would not endanger his or her health or safety or the health or safety of others even with reasonable accommodations.” The Ninth Circuit ruled that the ADA requires employers to accommodate employees without regard to whether they pose a direct threat to themselves. See Echazabal v. Chevron USA, Inc. (2000).

For additional information on AB 2222, contact the California Department of Fair Employment and Housing at 1-800-884-1684 (Within CA)/1-916-227-0551 (Outside CA) or http://www.dfeh.ca.gov.

Get a copy of AB 2222: html.

      

Reviewed 09/12/08.