Disability / Handicap Discrimination

In 1983, the legislature amended the Massachusetts Fair Employment Practices Act to prohibit discrimination on the basis of handicap in the workplace, which applies to companies with six or more employees. In 1990, Congress passed the Americans with Disabilities Act (ADA), which similarly makes it unlawful for employers to discriminate based on disability. The ADA applies to private employers with at least fifteen employees and all state and local governments regardless of the number of employees.

Under M.G.L. c. 151B, §1(17), Massachusetts law defines the term “handicap” to include: (1) a physical or mental impairment which substantially limits one or more major life activities, (2) a record of having such impairment, or (3) being regarded as having such impairment. As Massachusetts and federal courts have made clear, a showing of “substantial limitation” is not an onerous standard and does not require expert testimony. In Gage v. Rymes Heating Oils, for instance, the District Court of New Hampshire relied on 29 C.F.R. § 1630.2(j)(1)(i)-(v) to interpret the the “substantial limitation” burden under the ADA:

The substantial limitation standard “is not meant to be … demanding,” and a plaintiff “usually will not [be required to produce] scientific, medical, or statistical analysis” to show that her impairment imposes a substantial limitation.

In addition, under Massachusetts law specifically M.G.L. c. 152, §75B(1), an employee who suffers a work-related injury is by definition “a qualified handicapped person” for purposes of M.G.L. c. 151B.

Handicap discrimination can take many different forms, including disparate treatment, failure to accommodate, and failure to participate in the interactive process. As the MCAD recognized in Anderson v. United Parcel Service, in order to meet its obligation under the interactive process, an employer must engage in an open and meaningful dialogue.

In addition, both state and federal law prohibit employers from engaging in “associational” handicap and disability discrimination. In particular, under 42 U.S.C. §12112(b)(4), the ADA specifically forbids discrimination against “a qualified individual because of the known disability of an individual with whom the qualified individual is known to have a relationship or association.” Although not explicit within the statute, in Flagg v. AliMed, the Massachusetts Supreme Judicial Court interpreted FEPA to likewise prohibit associational handicap discrimination.

Later, in Perez v. Greater New Bedford Vocational Technical School District, a federal district court narrowly interpreted the Flagg decision to dismiss an associational handicap discrimination claim. In doing so, the court noted that “[c]ases involving associational discrimination have generally involved a familial relationship between the plaintiff and handicapped individual.” Notably, however, the Perez decision is not binding precedent on Massachusetts courts or other federal district court judges.

Certain employer policies will automatically violate the Americans with Disabilities Act and Massachusetts law. As one example, in McGregor v. Nat’l R.R. Passenger, the Ninth Circuit held that a policy requiring an employee to be “100% healed” eviscerates the ADA’s mandate that an employer engage in the interactive process and provide reasonable accommodations that do not pose an undue hardship:

A “100% healed” or “fully healed” policy discriminates against qualified individuals with disabilities because such a policy permits employers to substitute a determination of whether a qualified individual is “100% healed” from their injury for the required individual assessment whether the qualified individual is able to perform the essential functions of his or her job either with or without accommodation.

This holding reflects the EEOC’s position on “fully healed” policies and is consistent with other decisions; namely, Henderson v. Ardco, Meling v. St. Francis College, and Hutchinson v. UPS.

As acknowledged by the Massachusetts Commission Against Discrimination’s ruling in Gracia v. Northeastern University, rigid disability leave policies that set a blanket, maximum amount of time an employee can be on medical leave also violate the ADA and Massachusetts law. Notably, as reported in its Press Release, the EEOC reached a significant settlement and entered into a consent decree with Lowe’s where the company allegedly violated the ADA by automatically firing employees whose medical leaves exceeded a certain number of days.

Handicap discrimination law contains several terms of art, which the MCAD Handicap Discrimination Guidelines and M.G.L. c. 151B, §1 & §4(16) define as follows:

• Handicapped Person: Any person who either has a physical or mental impairment which substantially limits one or more “major life activities,” or a record of having such impairment, or is regarded as having such impairment.

• Major Life Activities: Functions, including, but not limited to, caring for one’s self, performing manual tasks, walking, seeing, hearing, speaking, breathing, learning and working.

• Qualified Handicapped Person: A handicapped person who is capable of performing the “essential functions” of a particular job, or who would be capable of performing the essential functions of a particular job with “reasonable accommodation” to his or her handicap. As noted above, under M.G.L. c. 152, §75B, an employee who suffers a work-related injury “shall be deemed to be a qualified handicapped person” under the Massachusetts Fair Employment Practices Act.

• Essential Functions: Functions which must necessarily be performed by an employee in order to accomplish the principal objectives of the job, namely those that are not incidental or tangential to the job in question.

• Reasonable Accommodation: Any adjustment or modification to a job that does not pose an “undue hardship” on the employer and that makes it possible for a handicapped individual to perform the essential functions of the position involved and to enjoy equal terms, conditions and benefits of employment.

• Undue Hardship: In deciding whether an accommodation poses an undue hardship, factors to be considered include the overall size of the employer’s business with respect to the number of employees, number and type of facilities, and size of budget or available assets; the type of the employer’s operation, including the composition and structure of the employer’s workforce; and the nature and cost of the accommodation needed.

Generally, an employer who knows of a disability yet fails to make reasonable accommodations violates M.G.L. c. 151B and the ADA, regardless of its intent, unless it can show that the proposed accommodations would create an undue hardship for its business.

The ADA Amendments Act of 2008 made several significant changes to the Americans with Disabilities Act, which essentially overturned several Supreme Court decisions strictly interpreting the ADA. As detailed below, the Amendments broadened the definition of “disability” by redefining key terms such as “major life activities,” the “regarded as” prong, and the meaning of “substantially limits.”

• The Amendments make clear that major life activities now include “major bodily functions” such as those of the immune, neurological, and reproductive systems.

• The term “disability” now encompasses impairments, like cancer or multiple sclerosis, that are episodic or in remission assuming the impairments in question would substantially limit a major life activity when active.

• Generally, the Amendments no longer consider mitigating or ameliorative measures when evaluating whether or not an impairment substantially limits a person’s major life activities.

• An employee satisfies the “regarded as” prong if she demonstrates discrimination based on “an actual or perceived physical or mental impairment whether or not the impairment limits or is perceived to limit a major life activity.”

With these changes, the Amendments make the ADA more consistent with Massachusetts law. In 2001, for instance, the SJC decided Dahill v. Police Department of Boston. There, the SJC refused to follow the Supreme Court’s reasoning in Sutton v. U.S. Air Lines and ruled that mitigating measures or corrective devices should not be considered when determining whether an employee is handicapped under FEPA.

The EEOC’s “Fact Sheet on the EEOC’s Final Regulations Implementing the ADAAA” and “Questions & Answers on the Final Rule Implementing the ADA Amendments Act of 2008” provide additional information on the changes to the ADA following the Amendments.

As lawyers concentrating in employment law and located in the heart of Boston, we look forward to meeting with you and addressing your handicap discrimination concerns.  

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