Epilepsy Disability Discrimination
For Olsen Law Offices, epilepsy discrimination is personal
Olsen Law Offices, APC represents people who has suffered work discrimination and harassment based on a variety of physical and mental conditions. But unlike many other excellent attorneys, Mr. Olsen’s experience with epilepsy is personal—one of his twin children has a history of epilepsy, the other twin has active epilepsy. You can read about his family’s personal experience with epilepsy here.
IMPORTANT NOTE: time limits will apply to your potential claims. For claims under the American With Disabilities Act, you have just 6 months (180 days) from the date of the discrimination to file a complaint with the EEOC. For discrimination claims under California’s Fair Employment and Housing Act (FEHA), you have up to three (3)* years to file either a) file a complaint with the Department of Fair Employment and Housing (“DFEH”) or b) obtain a Right-to-Sue letter from the DFEH.
*The three-year time limit for FEHA cases does not apply to discrimination that took place prior to January 1, 2019. Thus, if you suffered epilepsy discrimination on December 31, 2018, your deadline to file a compliant with the DFEH or seek a Right to Sue letter would be December 31, 2019. A new law went into effect January 1, 2020 that extends the deadline three years but it is not retroactive—meaning it cannot revive any claims that would have expired before December 31, 2019.
What is epilepsy and how many people does it affect?
Although we can assume you are very familiar with epilepsy, it is worth reviewing a standard definition. The Center for Disease Control (“CDC”) defines epilepsy as “a disorder of the brain that causes seizures” that “are not caused by a temporary underlying medical condition such as a high fever.” A “person is diagnosed with epilepsy when they have had two or more seizures.” Source, CDC Epilepsy Fast Facts.
As of 2015 the CDC estimates that about 5.1 million people have a history of epilepsy with about 3.4 million people suffering from active epilepsy. (source, CDC Epilepsy Fast Facts.) Within California, there are approximately 427,700 people with active epilepsy.
Most people with epilepsy can lead full, productive lives. Nonetheless, as the U.S. Equal Employment Opportunity Commission (EEOC) has noted, “Studies show that the unemployment rate for individuals with epilepsy is two to three times that of the general population. Also, individuals with epilepsy who are gainfully employed are likely to be underemployed or earn less than people who do not have epilepsy.” Source: Sept. 12, 2019 Press Release, EEOC Files Two Lawsuits.
Epilepsy discrimination is real.
What does epilepsy discrimination look like?
Disability discrimination can take many forms. Regardless of the form of epilepsy discrimination, the point is that you are suffering disparate treatment—meaning that you are treated differently from other employees. Employers who discriminate against employees suffering from disabilities such as epilepsy will set up the employee to fail. Typically, employers follow a predictable pattern meant to justify termination based on poor performance in disguise of the true intent to remove the unwanted employee:
- Assigning unusually large amounts of work tasks;
- Assigning work tasks with usually short deadlines;
- Passing the epileptic employee over for promotions;
- Improper questions about your medical history;
- Denial of a reasonable workplace change;
- Retaliation after disclosing your epilepsy battle to co-workers and/or supervisor; and
- Harassment and ridicule from co-workers and supervisors
- Telling co-workers, clients, and customers that your epilepsy prevents you from doing your job.
Here is what has been reported to us in real-life examples of epilepsy harassment and discrimination:
- Calling the epileptic employee “Mr. Shaky” while claiming “it’s just teasing, no one means anything by it;”
- Hiding the epileptic employee’s medication as a practical joke, all “in the name of fun;”
- Being told the employee couldn’t get offered a promotion “because . . . you know . . . your condition;”
- Overhearing a co-worker saying “I can’t work with a person like that;”
- After a seizure at work, the epileptic employee’s supervisor begins assigning a high volume of work tasks and becomes hyper-critical, leading to poor evaluations after a long record of good to excellent performance;
- Being reminded by co-workers, repeatedly, that the person suffered from epilepsy drools during her absence seizures;
- Mimicking the seizure event with other co-workers;
Click here for a real life example of epilepsy discrimination at work.
What Laws Apply to Epilepsy Discrimination?
California employees have two primary options for protection from epilepsy discrimination: 1) The Americans with Disabilities Act; and 2) The Fair Employment and Housing Act.
Federal Law: Americans with Disabilities Act (ADA)
What does the ADA do? The ADA “prohibits discrimination on the basis of disability in employment, State and local government, public accommodations, commercial facilities, transportation, and telecommunications.” Source: ADA Guide, 42 U.S.C. §§ 12101, et seq.
Does the ADA include claims for epilepsy discrimination? Yes.
Who does the ADA protect? The ADA protects persons who suffer from the disability and anyone who has “a relationship or association with an individual with a disability.” Source: ADA Guide, 42 U.S.C. §§ 12101, et seq.. The ADA protects the employment of the person who suffers epilepsy and any close family members, friends, and/or significant others who help. Source: ADA Guide, 42 U.S.C. §§ 12101, et seq.
Does the ADA apply to all employers? No. The ADA applies to business with 15 or more employees.
What do you need to do to pursue a claim under the ADA? You can pursue an action against your employer/former employer by filing a complaint directly to the EEOC. Or, if you prefer to litigate in federal court, you must obtain a Right-to-Sue letter from the EEOC. Regardless of which course you pursue, you will need to do so within 180 days of the discrimination.
We recommend that you hire an attorney to represent you (even if not this firm). The process to assert your rights is complex and full of traps.
What remedies are available under the ADA? If the employee wins the employee is entitled to recover “compensatory damages,” which include costs for job searches, medical expenses, mental anguish, inconvenience, loss of enjoyment of life, and punitive damages. Moreover, the employee may be able to recover attorneys’ fees, litigation costs, expert witness fees, and court costs.
California Law: The Fair Employment and Housing Act
The primary tool to challenge epilepsy discrimination in California is the Fair Employment and Housing Act.
What does FEHA do? FEHA allows employees who have suffered workplace discrimination to pursue several claims, such as disability discrimination, wrongful discharge in violation of public policy, retaliation, and harassment.
Does FEHA include epilepsy as a disability? Yes.
Who does FEHA protect? Similar to the ADA, FEHA protects the person with a disability and those close family members, friends, and significant others who help.
Does FEHA apply to all employers? No. FEHA applies to business that employ 5 or more people. But, because most businesses tend to have more than 5 employees, it is fair to say that FEHA applies to almost all employers in California.
What do you need to do to pursue a claim under FEHA? You will need to either file a complaint with the Department of Fair Employment and Housing (“DFEH”) or obtain a Right-to-Sue letter. If you wish to pursue a claim under FEHA then we highly recommend you hire an attorney to represent you.
What remedies are available under FEHA? With FEHA you are entitled to recover back pay (the amount you would have earned between a termination and trial date), future pay, past emotional distress, future emotional distress, medical expenses, litigation costs, and attorneys’ fees. If the employer’s behavior is bad enough, you may recover punitive damages.
Other Epilepsy Sources
The Epilepsy Foundation (www.epilepsy.com). This is a fantastic resource. The Epilepsy Foundation works tirelessly to advance the needs of people suffering from epilepsy and it offers significant resources to assist people with epilepsy, their loved ones, and their family members.
Local to San Diego, California? Check out the Epilepsy Foundation of San Diego County (www.epilepsysandiego.org). This organization is an amazing resource with scores of helpful volunteers and advocates. They offer many services, including visiting your work place to help your employer identify ways it can reasonably accommodate your workplace to reduce the things that may trigger seizures.