The Therapist
May/June 2011

DISABILITY DISCRIMINATION LAWS
The laws surrounding disability discrimination are vast and complex, and I have attempted to narrow down and summarize the main guiding principles below:

The ADA: The Americans with Disabilities Actvi (the “ADA”) is the key law that guides covered entities on the principle of disability discrimination. The ADA prohibits discrimination based on an individual’s disability in employment, government programs, and private and non-profit businesses.

Title I of the ADA: Title I prohibits covered employers from discriminating in employment related activities. Covered entities include private businesses and religious entities with 15 or more employees, educational institutions, as well as state and other governmental agencies. Title I violations can be filed with the U. S. Equal Employment Opportunity Commission (“EEOC”) within 180 days of the date of discrimination or a lawsuit may be filed in federal court once a “right to sue” letter from the EEOC is received. EEOC: (800) 669-4000 (voice), (800) 669-6820 (TTY), or www.eeoc.gov.

Title II of the ADA: Title II prohibits any discrimination by California and local governments giving people with disabilities equal opportunity to benefit from all programs, services, and activities. Covered under Title II are public schools. Title II complaints can be filed with the Department of Justice within 180 days of the date of discrimination or a lawsuit may be filed in federal court (no “right to sue” letter necessary). Department of Justice: (800) 514-0301 (voice), (800) 514-0383 (TTY), or www.ada.gov.

Title III of the ADA: Title III covers businesses and nonprofit service providers that are public accommodations, and private companies which offer courses and examinations. Covered under Title III are private schools, health care providers, non-profit counseling centers, homeless shelters, and day care centers. Also covered are professional licensing boards and continuing education providers. Title III complaints can be filed with the Department of Justice within 180 days of the date of discrimination or a lawsuit may be filed in federal court (no “right to sue” letter necessary). Department of Justice: (800) 514- 0301 (voice), (800) 514-0383 (TTY), or www.ada.gov.

The Rehabilitation Actvii: The Rehabilitation Act is a federal law that prohibits employer discrimination against individuals with disabilities. The Rehabilitation Act includes: §501 (prohibiting discrimination by federal employers); §503 (prohibiting employer discrimination by federal contractors and subcontractors); and, §504 (prohibiting discrimination by federal agencies, programs or activities that receive federal financial assistance (including schools whose students receive federal financial aid.) Covered under §504 are public and most private schools. Rehabilitation Act complaints should be filed with the federal agency in question. However, questions can be directed to the Department of Justice at: (800) 514-0301 (voice), (800) 514-0383 (TTY), or www.ada.gov. A lawsuit may also be filed in federal court.

The California Unruh Civil Rights Actviii: The Unruh Civil Rights Act provides protection from discrimination by all business establishments in California. Covered by Unruh are medical offices, nonprofit organizations, and some academic institutions. Unruh complaints can be filed with the California Department of Fair Employment and Housing, or a lawsuit may be filed in state court. Contact information for the Department: (800) 884-1684 (voice), (800) 700-2320 (TTY), or www.dfeh.ca.gov.

The California Fair Employment and Housing Act (the “FEHA”)ix: The FEHA prohibits discrimination by any employer (with five or more full time and/or part time employees) based on a disability. FEHA complaints can be filed with the Department of Fair Employment and Housing (“DFEH”) within one year of the date of discrimination, or a lawsuit filed in state court once a “right to sue” notice is released from the DFEH. FEHA complaints can be filed with the DFEH at: (800) 884-1684 (voice), (800) 700-2320 (TTY), or www.dfeh.ca.gov.

California Civil Code §§54-55.2: Civil Code §§54-55.2 provides that individuals with disabilities have the same rights as the general public to the full and free use of the sidewalks, walkways, public buildings, hospitals, medical facilities and offices, public and private schools, and other public places. Violations of §§54-55.2 would be pursued through the filing of a lawsuit in state court.

California Government Code §§11135-11139.8: Government Code §§11135-11139.8 prohibits discrimination in any program or activity that is conducted, funded directly by, or receives any financial assistance from the State. Covered by §§11135-11139.8 would be governmental entities, public and some private schools, and some licensed health care facilities. Complaints should be filed with the noncompliant state department or agency. Violations of §§11135-11139.8 could also be pursued through the filing of a lawsuit in state court.

Lawsuits: As noted above, all discrimination violations can be corrected through the filing of a complaint with the proper department, as well as through the filing of a lawsuit against the covered entity that permitted the discrimination. The following remedies are potentially available to the individual who was discriminated against, including but not limited to: Damages, attorneys’ fees, expert witness fees, court costs, requirement of entity to post notices to all employees addressing the violations, and the requirement that the entity take corrective or preventive actions. Some of these litigation and/or reparative costs can be very hefty.