Protection & Advocacy, Inc. Sacramento Legal Office, 100 Howe Avenue, Suite 235 North, Sacramento, CA 95825-8202, Tel: (916) 488-9950 Fax: (916) 488-9960 Toll Free/TTY/TDD: 1-800-776-5746 M E M O R A N D U M TO: Interested Persons FROM: Protection and Advocacy, Inc. RE: Information on Filing Employment Discrimination Complaints DATE: August 24, 1994 1) Can the law help me if I think that my employer is discriminating against me because I have a disability? Yes. There are six main federal and state laws that protect people with disabilities from discrimination in employment. These are: the federal Americans with Disabilities Act (ADA); the federal Rehabilitation Act 501, 503, and 504; the California Fair Employment and Housing Act (FEHA); and California Government Code 11135. Each law protects different employees and covers different employers. Each law has different rules about when and how to complain about discrimination. Under each of these laws you can file complaints and sometimes lawsuits in court. If you file a complaint or a lawsuit, you will have to follow through by appearing at hearings or court proceedings, writing statements and being interviewed by your employer's representatives or lawyers. 2) How do I know whether to file a state or a federal complaint? You must first figure out which laws will cover you, your employer, and your complaint. You may find that several laws cover you and that you can file a complaint either with a state or federal agency, or file a lawsuit in state or federal court. You should talk to an advocate, an attorney or someone at PAI to help you figure out which laws cover you and where to file your complaint. Sometimes, federal and state agencies have agreements about who will handle your administrative complaint if you can file with both. For example, if you can file a complaint with both the California Department of Fair Employment and Housing and the federal Equal Employment Opportunity Commission, you can file with either agency. Whichever agency you file with will let you know which agency will investigate your complaint. 3) What disabilities are protected by these laws? The ADA protects "qualified individuals with a disability." 42 USC 12102(2), 29 CFR 1630.2 g. This means that you must: a) be qualified to perform the essential functions of the job (with or without a reasonable accommodation). This means that you must have the minimum requirements necessary to perform the job such as, the necessary education, experience or licenses; and b) have a disability that is a physical or mental impairment that substantially limits one or more major life activities (such as, caring for yourself, performing manual tasks, walking, seeing, hearing, speaking, breathing, learning, and working); or c) have a record of such an impairment (such as a disease in remission); or d) be regarded as having such as impairment. For instance, if your impairment does not limit your ability to do your job, but your employer treats you as if it does, then you are regarded as having an impairment. The ADA also protects anyone discriminated against because he or she is associated with or related to someone who has a disability. The definition of a disability does not include transvestitism, sexual behavior disorders, or current illegal drug use. 42 USC 12208, 42 USC 12114(a). This same definition is used in California Government Code Section 11135 and the Rehabilitation Act ( 501, 503, and 504) (29 USC 706(7)(B)), except, unlike the ADA, these laws do not protect you if you are discriminated against because of someone you are related to or associated with. The FEHA covers all disabilities covered by the ADA; but physical disabilities do not necessarily have to cause a substantial limitation in a major life activity. California Government Code 12926(h). 4) What employers are covered by these laws? The ADA applies to private employers, employment agencies and labor unions under Title I (42 USC 12111(5)(7), 29 CFR 1630.2 b-e) and state and local government employers under Title II (28 CFR 35.140). Since July 26, 1992, private employers with 25 or more employees must follow the ADA's rules. Since July 26, 1994, private employers with 15 or more employees must follow the ADA. 42 USC 12111(5(A). All state and local government employers are covered by the ADA regardless of the number of employees they have. Employers that are not covered by the ADA are the United States (except Congress is covered by the ADA), private membership clubs, and Indian tribes. 42 USC 12111(5)(B). Section 501 of the Rehabilitation Act covers all federal departments and agencies. 29 USC 791. Section 503 of the Rehabilitation Act covers contractors and subcontractors with the federal government. 29 USC 793, 41 CFR 60-741.1. Section 504 of the Rehabilitation Act (29 USC 794) covers anyone who receives federal funds, even if the main purpose of the assistance is not to provide employment. Consolidated Rail v. Darrone, 465 U.S. 624, 104 S. Ct. 1248 (1984). California Government Code Section 11135 covers any employers which are funded directly by the State or which receive financial assistance from the state. The employer must receive a total of $10,000 per year from the state or at least $1,000 per arrangement. California Government Code 11135, 22 CCR 98010. Under the FEHA, an employer cannot discriminate when it employs five or more people, is the State of California or any political/civil subdivision of the state, or is a city. California Government Code 12926(c). In the case of individuals with mental disabilities, employers with 15 or more employees may not discriminate against individuals with mental disabilities as of July 26, 1994. California Government Code 12926(d)(2). Religious organizations and corporations not organized for private profit are not covered by the FEHA. 5) What kinds of actions by an employer are covered by these laws? Under the ADA, employers can not discriminate because of your disability in application procedures, hiring, firing, advancement, compensation, training, and other terms and conditions of employment and recruitment. This includes advertisements, tenure, layoffs, leave time, benefits, and all other employment-related activities. Refusing to provide a reasonable accommodation is also discrimination.(1) In addition, the ADA applies to contracts the employer may have with other businesses. 42 USC 12112(a)(b), 29 CFR 1630.4 a-i. Section 501 protections extend to all aspects of employment, including recruitment, hiring, promotion, benefits, and any other privilege of employment. Section 501 also requires employers to have affirmative action plans for the hiring, placement, and advancement of people with disabilities. 29 U.S.C. 791. Section 503 protections extend to all aspects of employment, including recruitment, hiring, promotion, benefits, and any other privilege of employment. Section 503 also requires federal contractors to implement affirmative action plans for the employment and advancement of people with disabilities. 29 USC 793. Section 504 protections extend to all aspects of employment, including recruitment, hiring, promotion, benefits, and any other privilege of employment. 29 USC 794. California Government Code section 11135 provides at least the same protection as the ADA. Employers may not discriminate against a person with a disability in hiring, training programs, firing, compensation, or other terms and conditions of employment. California Government Code 12940.6) 6) Where and when can I file a complaint? ADA: You can file a complaint with the Equal Employment Opportunity Commission (EEOC). 42 USC 12116. A complaint must be filed with the EEOC within 300 days of the discrimination. 42 USC 2000e-5(e). If the EEOC issues a right to sue letter, you have 90 days to sue in US District Court. 42 USC 2000e-5(f)(1). You must receive a right to sue letter from the EEOC before filing an action in court. In California, you can also file with the DFEH. The EEOC or the DFEH will let you know which agency will investigate your complaint. Section 501: You must first consult with an internal EEO counselor within 30 days of the discrimination and try to informally correct the discrimination. 29 CFR 1613.213(a), 1613.214(a). If it cannot be corrected within 21 days, the EEO counselor will give you written notice. Within 15 days of receiving the notice from the EEO counselor, you can file a written complaint with the federal agency that employs you. The employing agency's decision may be appealed to the EEOC within 20 days after notice of the employing agency's final decision on the matter. You must first file with the EEOC before filing in court. A private lawsuit can be filed only when one of the following occurs: (1) within 30 calendar days of your receipt of notice of final action taken by the employing agency on a complaint or claim; (2) after 180 calendar days from the date that you filed a complaint or claim with the employing agency if there has been no decision on the complaint or claim; (3) within 30 calendar days of your receipt of the decision of the Office of Federal Operations on your appeal; or (4) after 180 calendar days from the date that you filed an appeal with the Office of Federal Operations, if there has been no Office of Federal Operations decision. 29 C.F.R. 1613.641(a). Section 503: Within 180 days of the discrimination, you may file with the Office of Federal Contracts Compliance Programs at the Department of Labor. 41 CFR 60-741.26. Case law says that you cannot file a private law suit under 503. Section 504: You can file with the federal agency that gives funds to your employer within 180 days(2) of the discrimination. You should file a lawsuit in US District court within one year of the discrimination.(3) You do not need to file a complaint with the federal agency before going to court. California Government Code Section 11135: A complaint should be filed within one year from the date of the discriminatory action with the state agency that administers the program involved. If you are not aware of the discriminatory action until more than one year from the event, the time period is extended by 90 days. 22 CCR 98344. The state agency may stop funding to the program and may forward the complaint to the DFEH. You cannot file a private lawsuit unless the state agency does not resolve your complaint on time. 22 CCR 98003. The administering state agency has authority to investigate and resolve discrimination claims. A private party may bring a court action to require an administering state agency to comply with the requirement that it investigate and resolve complaints. 22 CCR 98002, 98003. Arriaga v. Loma Linda University, 10 Cal. App. 4th 1556; 13 Cal. Rptr. 2d 619 (1992). FEHA: You can file with the DFEH within one year from the discrimination. California Government Code 12960. If the DFEH issues a "right to sue" letter, you may then file a private lawsuit in state court. If you think you may have an ADA complaint in addition to the FEHA complaint, you should file with the DFEH or the EEOC within 300 days, since the time line for filing an ADA complaint is 300 days. 7) What will happen if my complaint is found to be true? Under the ADA, Sections 501 and 504, and the FEHA, you may get injunctive relief (an order to perform or not perform an act) which includes, for example, reinstatement, making a building accessible, hiring an employee to assist you, and back pay. You may also get compensatory damages (payment to compensate you) for any losses you may have suffered and for pain and suffering, and you may be able to get punitive damages (damages that punish), depending on whether your employer's discrimination was intentional. 42 USC 2000e-5(f)(1). Under Section 503, you cannot file a private lawsuit, but the Department of Labor may order injunctive relief, and may penalize your employer by withholding funds, terminating its contract with your employer, or preventing your employer from having future government contracts. You may be able to get damages, but this issue is not resolved in the courts. Your employer may also be required to pay a fine if it does not follow or have an affirmative action plan. 41 C.F.R. 60-741.4. California Government Code 11135 allows the state agency to suspend or terminate funding to your employer and may require your employer to comply with the rules of Section 11135 which prohibit discriminatory employment practices. 22 CCR 98370. ----------------------------------------------------------------- 1. For more information about the ADA and reasonable accommodations, call PAI and ask for the memo entitled "ADA Employment Rights for Persons with Mental Disabilities/Notice of Disability and Reasonable Accommodations." (PAI Number 5068.01, $2.00.) 2. Each federal agency is responsible for its own regulations regarding complaints under 504. Most agencies have similar regulations and allow 180 days to file. It would be wise to confirm this with the agency if you want to file a complaint. 3. The relevant case law indicates that state statutes of limitations apply. In California, the statute of limitations for torts (civil wrongs) is one year, although suits filed under a statute must be filed within three years. Thus, section 504 should have a three-year statute of limitations. However, to be on the safe side, lawsuits should be filed within one year. Protection & Advocacy, Inc. 1-800-776-5746 legal@pai-ca.org