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Patrick, Esq.
Patrick, Esq., Lawyer
Category: California Employment Law
Satisfied Customers: 7004
Experience:  Significant experience in all areas of employment law.
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Now taking adverse action against an employee due to to any

Resolved Question:

Now taking adverse action against an employee due to to any one of the protected rights is unlawful including mental illness. Could you please elaborate on mental illness such as OCD or ADD or ADHD. Example being employee is terminated for causing an uncomfortable work place. However the reasons were due to the ADD such as cutting people off while they are talking, or being inattentive, spacey, or impulsive or "snappy" no I'm not saying dysfunctional to where things are being thrown or physical harm is a concern. Also on some of the other "Mild or Soft" mental disorders such as seasonal depression does the law protect those or just individuals with debilitating mental illness
Submitted: 2 years ago.
Category: California Employment Law
Expert:  Patrick, Esq. replied 2 years ago.
Hello and thank you requesting me to answer your question.

An employee who experienced adverse employment action as a result of a mental illness would only have legal redress if the illness qualified as a protected disability pursuant to the Americans With Disabilities Act.

The ADA defines disability as a "physical or mental impairment that substantially limits one or more major life activities" of the individual at issue. Federal regulations provide that an impairment "substantially limits" a major life activity where (1) the individual is unable to perform a major life activity that the average person in the general population can perform; or (2) the individual is significantly restricted as to the condition, manner, or duration under which the individual can perform a particular life activity as compared to the average person in the general population.

The ADA doesn't provide a "list" of protected disabilities, but instead requires assessment of the unique circumstances of each disabled person to determine whether, on the specific facts presented, the illness satisfies the above definition.

Assuming that the ADD or OCD were sufficiently severe to qualify as a disability (which is difficult to prove), an employer would be required to engage in an interactive process with the employee to determine whether reasonable accommodations can be made that would allow the employee to perform the essential functions of their position. Terminating an employee before attempting to engage in such process, or terminating them after accommodations have been made that do allow the employee to perform the essential functions of their position would qualify as actionable discrimination.

If you believe that you have been the subject of unlawful discrimination and wish to file a lawsuit, you must first file a formal complaint of discrimination with the federal Equal Employment Opportunity Commission (EEOC) or California's Department of Fair Employment and Housing. Either the EEOC or the DFEH will issue you an authorization to sue after they investigate your claim. You don't need to file with both agencies. Finally, if you decide to sue, don't miss your deadline. Under federal law in California, you have 300 days from an act of discrimination to file a complaint.

For information on how to bring a claim through California's DFEH, visit this link: http://www.dfeh.ca.gov/Complaints.htm For information on how to brig a claim through the EEOC, visit this link: http://www.eeoc.gov/employees/charge.cfm

I sincerely XXXXX XXXXX this information helps you and I wish you the very best of luck. Bear in mind that none of the above constitutes legal advice nor is any attorney client relationship created between us.

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Patrick, Esq., Lawyer
Satisfied Customers: 7004
Experience: Significant experience in all areas of employment law.
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