WHAT IS AMNESIA?
Amnesia is a condition that disturbs memory. The causes of the amnesia can be organic (such a brain damage, trauma, or disease) or functional (caused by psychological functions, such a post-trauma amnesia). Amnesia can render an individual incapable of recalling the past, incapable of making new memories, or even incapable of imagining the future.
Anterograde amnesia affects an individual by not allowing him or her to remember new memories (those memories that arise after the onset of amnesia) for a long period of time. With retrograde amnesia, the individual has trouble recalling memories that were formed before the onset of amnesia. An individual can suffer from both anterograde amnesia and retrograde amnesia at the same time, which leaves the individual in a state of incredible confusion.
WAYS IN WHICH YOU MIGHT BE DISCRIMINATED AGAINST BECAUSE OF AMNESIA
- Your employer does not allow you to miss work for medical appointments
- Your employer does not accommodate your need to take a reasonable amount of time off of work
- Your employer will not provide reasonable on-site accommodations for your disability
- Following the onset of amnesia, your employer does not retrain you so as to allow you to continue your employment
HOW THE LAW PROTECTS YOU IF YOU HAVE AMNESIA
To state a cause of action for disability discrimination, an employee must be disabled, regarded as disabled, or have a record of being disabled. The employee must then show that:
- his or her disability results in physical limitations
- that he or she can still perform the essential functions of the job (with or without reasonable accommodations)
- and that the employer took some adverse action (such as not hiring, firing, or demoting the employee) on the basis of that disability
According to both the Americans with Disabilities Act (ADA) and the California Fair Employment and Housing Act (FEHA), an employer may not take any adverse action against an employee because of the employee's disability. An adverse employment action would include discriminatory hiring, firing, or lack of accommodation. Having amnesia can certainly be a disability, deserving of protection from discrimination, as long as the amnesia limits the individual's ability to work.
The employer has an obligation to provide reasonable accommodation to an employee with amnesia so as to allow the employee to perform the essential functions of the job. Usually, this will require an employer to retrain an individual who has suffered from amnesia so as to allow him or her to begin work again. The law will protect an employee whose employer does not provide these necessary accommodations. If an employee, however, has forgotten a great deal of education that is necessary for the individual to accomplish her job, then requiring the employer to reinstate the individual might place too much of a burden on the employer. In that case, it is unlikely that either the ADA or FEHA would protect the individual from discrimination.
- For Legal Help see Finding an Attorney and David H. Greenberg, California Employment Law Attorney.