Disability Discrimination in Massachusetts
The Americans with Disabilities Act and the Massachusetts Fair Employment Practices Act both contain important protections for disabled employees. Generally speaking, those statutes protect employees who are ‘disabled’ by prohibiting them from being harassed or discriminated against due to that disability. Those statutes also require employers to interact with their disabled employees to identify accommodations that address the symptoms of their disability and allow them to perform their jobs effectively.
In order to be entitled to the protections of disability law, an employee must establish that he or she suffers from a mental or physical impairment that substantially limits one or more major life activities. Major life activities include caring for one’s self, performing manual tasks, walking, seeing, hearing, speaking, breathing, learning, and working. Resolution of whether a person’s impairment substantially limits that person’s performance of a major life activity requires an individual, case-by-case assessment. There are no hard-and-fast rules with respect to how limited a plaintiff’s performance of a particular major life activity must be before it qualifies as substantial. Employees can establish that they are disabled by introducing evidence of a diagnosis, providing testimony from health care professionals, and by providing sworn testimony setting forth specific ways in which their condition impacted day-to-day activities. Employees can also establish that they are entitled to protections of disability law by showing that their employer regarded them as disabled, even if they are not, actually, disabled. An employer who discounts an employee’s physician and relies on its own doctor’s opinion regards an employee as disabled. An employer who makes comments about how an employee’s condition impacts their ability to function regards that employee as disabled. Physical impairments are those that affect body systems such as neurological, musculoskeletal, sense organs, respiratory, cardiovascular, reproductive, digestive, genitourinary, immune, circulatory, hemic, lymphatic, skin, and endocrine. Mental impairments are mental or psychological disorders that affect an individual’s mental state. These conditions include depression, PTSD, bipolar disorder, schizophrenia, and obsessive-compulsive disorder.
To establish an ADA discrimination claim, you must show that you are (1) disabled within meaning of ADA, (2) able to perform essential job functions with or without accommodation, (3) discharged or adversely affected, in whole or in part, because of the disability. The best type of evidence to prove this type of claim is direct evidence (typically comments that show a discriminatory intent) or indirect evidence (typically proof that you are being treated differently than your non-disabled employees). Essential job functions are those that must necessarily be performed by an employee in order to accomplish the main components of the job. Just because something appears on a job description does not make it essential. Courts are far too smart for that. But that does explain why some employers use multi-page job descriptions.
Disability harassment is actionable if it is based on the individual’s disability and sufficiently severe or pervasive to alter a material term, condition, or privilege of employment. Your employer is violating anti-discrimination laws if you are being subjected to harassment at work due to your disability.
Disability law also requires employers to provide reasonable accommodations to their employees so they may perform their job and to engage in an interactive process to identify potential accommodations that may help. This requirement is designed to facilitate a conversation between employer and employee to be sure the employer takes all reasonable steps to ensure continued employment for a disabled employee. The ADA’s reasonable accommodation requirement is not triggered until the employee makes a request for an accommodation unless the employer knew one was needed. Employee’s accommodation request must be sufficiently direct and specific and explain how the accommodation requested is linked to some sort of disability. However, to request an accommodation, an individual may use plain English and need not mention the ADA or use the phrase “reasonable accommodation.”
Typically, a reasonable accommodation is an adjustment to your job that makes it possible for an employee to perform essential job functions. Accommodations that pose an undue hardship are not reasonable. Factors to include when deciding if an accommodation is reasonable include the number of employees, number and type of facilities, employer’s budget, type of operation, and composition of the workforce. Common reasonable accommodations include granting leave for doctor’s appointments or treatment, granting periodic breaks, modifying a work schedule, allowing someone to work from home, granting a shift change, redistributing work tasks, reassigning to different position, and lifting restrictions. Accommodations are not reasonable if they would create an undue hardship for an employer, meaning that it would require significant difficulty or expense if granted.
Employees denied reasonable accommodations can bring failure-to-accommodate claims. To succeed on those claims, employees must (1) furnish sufficient admissible evidence he/she is a qualified individual with a disability within the meaning of ADA; (2) establish that he/she worked for an employer covered by ADA; (3) demonstrate that the employer, despite its knowledge of the employee’s limitations, did not accommodate those limitations; and, (4) show that the employer’s failure to accommodate the known limitations affected the terms, conditions, or privileges of the plaintiff’s employment. The burden then shifts to the employer to establish a legitimate, non-discriminatory reason for its actions. If the employer offers a non-discriminatory reason, the burden then shifts back to the plaintiff to show that the employer's justification is a mere pretext used to cloak the discriminatory animus. Employers who know of a disability yet fail to make a reasonable accommodation violate the ADA and Massachusetts law protecting disabled employees. Intent doesn’t matter.
The process by which an employer and employee uncover possible accommodations is known as the interactive process. Employers must engage in this process. If they don’t, they’ve engaged in unlawful disability discrimination. The interactive process requires bilateral cooperation and communication. The process requires open communication by both parties, and an employer will not be held liable if it makes reasonable efforts both to communicate with the employee and provide accommodations based on the information it possessed. An employer cannot be found to have violated the ADA when responsibility for the breakdown of the informal interactive process is traceable to the employee and not the employer. The refusal of an employer to participate in that process once initiated, or to make a reasonable accommodation once it has been identified, is a violation of our discrimination laws.