A California employee doesn’t have to be disabled to bring a disability discrimination claim. FEHA covers anyone the employer regards or treats as having a limiting condition. In Gelfo v. Lockheed Martin Corp. (2006) 140 Cal.App.4th 34, the Court of Appeal held that the duty to accommodate reaches those employees too. Most of these claims start with a doctor’s note. The defense starts with an individualized look at the job.
What is perceived disability discrimination?
It’s an adverse action taken because the employer believes the employee has a limiting condition, whether or not the belief is right.
FEHA builds the rule into its definitions. Government Code section 12926, subdivision (m)(4) defines physical disability to include “Being regarded or treated by the employer or other entity covered by this part as having, or having had, any physical condition that makes achievement of a major life activity difficult.” Subdivision (j)(4) says the same about mental conditions. Paragraph (5) of each subdivision goes further and covers a condition the employer believes “may become” disabling later.
The Legislature explained why. In section 12926.1, subdivision (d), it said those paragraphs exist “to provide protection when an individual is erroneously or mistakenly believed to have any physical or mental condition that limits a major life activity.” A separate catch-all in section 12926, subdivision (o)(2) reaches “A perception that the person has any of those characteristics” for every protected category.
Does the employee have to prove an actual disability?
No. The question is what the employer believed.
Gelfo is the leading case. Lockheed withdrew a fabricator job offer after reviewing workers’ compensation reports that restricted how long Gelfo could sit or stand, even though Gelfo told the company it was misinformed about his restrictions and asked it to reconsider. The Gelfo court wrote that “The sole issue under the ‘regarded as’ definitional prong is whether the employer believes an applicant or employee is physically disabled.” It added that “whether Lockheed’s perception was mistaken was irrelevant.”
That cuts against an argument employers often want to make. Telling a jury the employee wasn’t really disabled doesn’t help when the company’s own paperwork shows it acted on the restrictions. In Gelfo, the court treated Lockheed’s explanation for withdrawing the offer as “the functional equivalent of an admission” that it regarded him as limited.
Do we have to accommodate someone we only regard as disabled?
Under FEHA, yes. Federal law says otherwise, and California employers shouldn’t rely on the federal rule.
The Gelfo court concluded “that employers must reasonably accommodate individuals falling within any of FEHA’s statutorily defined ‘disabilities,’ including those ‘regarded as’ disabled, and must engage in an informal, interactive process to determine any effective accommodations.” The accommodation duty comes from section 12940, subdivision (m)(1), and the interactive process duty from subdivision (n).
Congress went the other way in 2008. Under 42 U.S.C. section 12201(h), an employer “need not provide a reasonable accommodation” to someone who meets the ADA’s disability definition only through its regarded-as prong. That answers the federal claim, but it doesn’t answer the state claim that almost always comes with it in a California lawsuit, and section 12926.1, subdivision (a) says California’s disability law provides “protections independent from those in the federal Americans with Disabilities Act.”
The practical upshot is that the interactive process is the employer’s best evidence in a regarded-as case. The firm’s post on failure to engage in the interactive process covers how those meetings should be run and documented.
How do perceived-disability claims usually arise?
Mostly from paperwork and assumptions about what an employee can do.
A return-to-work note lists restrictions, and a manager decides the employee can’t do the job without asking. A supervisor hears about a diagnosis and pulls the employee off a project. An applicant discloses an old injury after an offer, and the offer disappears. In each case, the employee can argue the company acted on a belief about a condition instead of on an assessment of the person.
Offhand comments make it worse. A manager who tells an employee back from medical leave that the job may be too stressful now has handed the employee evidence of what the company believed. Training supervisors to talk about job requirements and observed performance, and not about health, closes off a lot of these claims before they start.
Gelfo shows what that looks like in the record. The court faulted reports that rested on “cursory, generalized opinions about prophylactic measures” instead of an individualized assessment. It also said “Lockheed cannot simply point to the medical reports in Gelfo’s file, and automatically absolve itself of liability under FEHA.”
What defenses does an employer have?
The strongest defense is a documented, individualized decision about what the job requires.
FEHA allows an employer to act on a real inability to do the work. Section 12940, subdivision (a)(1) says the statute doesn’t impose liability where the employee “is unable to perform the employee’s essential duties even with reasonable accommodations, or cannot perform those duties in a manner that would not endanger the employee’s health or safety or the health or safety of others even with reasonable accommodations.” The firm’s guide to proving job functions in disability cases walks through how employers prove that.
Medical opinions help, but only if someone evaluates them. Gelfo quoted a federal decision holding that “an employer cannot slavishly defer to a physician’s opinion without first pausing to assess the objective reasonableness of the physician’s conclusions.” An employer that reads the restrictions, compares them to a current job description, talks with the employee, and explains its decision in writing is in a far better position than one that acts on the note alone.
A legitimate, unrelated reason for the decision also remains a defense, and it’s often the central issue at summary judgment. If the employee was let go for documented performance problems that predate any medical issue, the regarded-as theory adds little. Experienced California disability discrimination defense for employers often focuses on the timeline: what the decision-makers knew about the condition, and when.
| Situation | Exposure | What helps the defense |
|---|---|---|
| Offer withdrawn after post-offer medical exam | Regarded-as discrimination and failure to accommodate | Written job description, individualized review, interactive process with the applicant |
| Employee pulled from duties after a diagnosis | Regarded-as discrimination | Evidence the change was based on job requirements and was discussed with the employee |
| Return-to-work note with restrictions | Failure to accommodate and failure to engage | Meeting notes, accommodations considered, reasons each was or wasn’t workable |
| Termination for performance during medical leave | Disability discrimination, perceived or actual | Performance records that predate the condition, consistent treatment of others |
| Fitness-for-duty exam ordered | Improper medical inquiry claim under § 12940(f) | A job-related, business-necessity reason documented before the exam |
Steps to take after a perceived-disability claim arrives
- Preserve the records under a litigation hold: the personnel file, medical and leave records kept separately, the job description in effect at the time, emails and texts among managers, and the accommodation and leave policies.
- Calendar the response date on the CRD complaint, demand, or summons, and check for an arbitration agreement and an employment practices liability (EPLI) policy with notice requirements.
- Identify the decision-makers and what each one knew about the employee’s condition, and keep any further action against the employee from looking like retaliation.
- Pull the documents the claim depends on: the work restrictions, any interactive process notes, the decision memo or termination paperwork, and the performance history.
- Talk to a lawyer before responding to the employee or the employee’s lawyer, ordering a medical exam, or offering anything to resolve the claim.
FAQ
Can an employee win a disability claim if their doctor cleared them to work?
Yes. Under Gelfo, the issue in a regarded-as claim is what the employer believed, not whether the employee was actually limited. An employee who was cleared to work but was treated as unable to do the job can argue the company acted on a mistaken perception. The employer’s defense usually depends on showing it evaluated the job and the restrictions individually and had a legitimate reason for its decision.
Can we require a fitness-for-duty exam for a current employee?
Sometimes. Government Code section 12940, subdivision (f)(2), allows examinations of employees that the employer “can show to be job related and consistent with business necessity.” A documented safety concern or observed performance problem tied to the job supports that showing. An exam ordered because of a rumor or a diagnosis, without a job-related reason, invites both an improper-inquiry claim and a perceived-disability claim.
Does the ADA rule on regarded-as accommodation help a California employer?
Only on a federal claim. Federal law says an employer need not accommodate someone covered solely under the ADA’s regarded-as prong. FEHA has no such exception, and Gelfo held that California employers must accommodate employees they regard as disabled and engage in the interactive process with them. A California employer sued under both laws should expect the state claim to drive the case.
If your company faces a perceived-disability claim
If your company has received a CRD complaint, demand letter, or lawsuit claiming it treated an employee as disabled, the job description and the interactive process record usually decide how strong the claim is. Rosenberger + Kawabata represents employers defending employment lawsuits and claims through its business litigation practice, including claims involving perceived disability and medical work restrictions. Contact Rosenberger + Kawabata online for a confidential consultation, or call (310) 894-6921.
Sources
The case is Gelfo v. Lockheed Martin Corp. (2006) 140 Cal.App.4th 34. The California statutes are Government Code section 12926, section 12926.1, and section 12940. The federal statute is 42 U.S.C. section 12201.
This post is general information about California and federal employment law as of November 7, 2026. It is not legal advice, and reading it does not create an attorney-client relationship. Employment statutes, regulations, and court decisions change often, and the outcome of any claim depends on its facts. Past results do not guarantee future outcomes.