Are you a Victim of Disability Discrimination at Your Massachusetts Workplace

by | Aug 17, 2021 | Employment Law |

There are several federal and Massachusetts state laws that apply to a disabled person’s right not to be discriminated against in employment. The Americans with Disabilities Act of 1990 (“ADA”) is the federal law which prohibits discrimination against persons with disabilities. The Massachusetts employment discrimination law is Chapter 151B of the Massachusetts General Laws.

The ADA and Chapter 151B both prohibit employment discrimination against individuals with disabilities. Chapter 151B, however, covers some private employers and certain medical conditions not covered by the ADA.

Both the ADA and MGL. C. 151B apply to public and to private employers, The ADA covers employers with 15 or more employees: the state law, MGL c. 151B covers employers with 6 or more employees.

Both the ADA and Chapter 151B provide that an employer may not discriminate against a “qualified individual with a disability” (“qualified handicapped person” under Chapter 151B).

Individual with disability – defined

An individual with disability is someone:

  1. with a mental or physical impairment that limits one or more major life activities; or
  2. who has a history of such an impairment; or
  3. who is perceived (even if erroneously) as having such an impairment.

Both laws cover infection with HIV, even if one has no visible symptoms, and AIDS.

A Qualified individual with disability refers to those individuals with a disability who: (1) satisfy the general skill, experience, education and other job-related requirements, and (2) can perform the essential functions of the job, with or without reasonable accommodation.

Essential functions are narrowly defined to include fundamental job duties. A job function is more likely to be “essential” if it requires special expertise, or a large amount of time, or if that function was listed in the written job description prepared before the employer advertised for or interviewed job applicants.

Reasonable accommodation and undue hardship

“Reasonable accommodation” refers to an employment-related modification that an employer must make in order to ensure equal opportunity for an individual with a disability to (1) apply for and test for a job, (2) perform essential job functions, and (3) receive the same benefits and privileges as other employees. The employer is only required to provide a reasonable accommodation to known disabilities (i.e. if the applicant or employee informs the employer of the disability, or if the disability is obvious). Moreover, if an accommodation would cause “undue hardship” an employer is not legally required to provide it. “Undue hardship.”

Some common examples of accommodations include: changes to job schedules, physical alteration to the existing facilities, provision of qualified readers or interpreters, and modification of training materials.

If an employer can demonstrate that the requested accommodation imposes an “undue hardship” on its operations (e.g. financial or administrative, for example), it would not be required to provide the requested accommodation. An applicant or employee has the right to know the reason(s) a requested accommodation is considered an undue hardship.

An accommodation may prove to be an undue hardship when its implementation would result in “significant difficulty or expense” to the employer. Factors to be considered in making this determination include:

  1. the nature and cost of the accommodation itself;
  2. the impact of the accommodation on the operation of the facility involved, taking into account the overall resources and the number of its employees;
  3. the manner in which the employer’s business operates, taking into account its size and financial resources.

In asserting that an accommodation is an undue hardship, an employer must rely upon actual, not hypothetical, costs and burdens.

An employer may refuse to hire a qualified individual with a disability if the applicant presents a significant risk of substantial harm to him/herself, to other employees, or to the public, that cannot be eliminated or reduced by reasonable accommodation. An employer must conduct an individual assessment of the person’s present ability to perform the job’s essential functions safely.

In a recent case filed by Equal Employment Opportunity Commission (EEOC) against Walmart found that the retailer failed to accommodate Marlo Spaeth, a longtime employee with Down syndrome and then fired her because of her disability.

The EEOC presented evidence that a change Walmart made to Spaeth’s longstanding work schedule caused her significant difficulty. When she requested her start and end times be adjusted by 60 to 90 minutes and to be returned to her prior schedule, Walmart failed to act on the request and instead fired her.

Spaeth had worked for the company for approximately 16 years and had consistently received positive performance evaluations from her managers, according to evidence presented at trial. The jury also found that Walmart turned down Spaeth’s later request to be rehired because of her disability or because of their need to accommodate her disability.

Such alleged conduct violates the Americans with Disabilities Act (ADA), which prohibits discrimination based on an employee’s disability.

The jury awarded Spaeth $150,000 in compensatory damages and $125,000,000 in punitive damages after deliberating for three hours following the four-day trial.

Employers, no matter how large, have an obligation under the law to evaluate the individual circumstances of employees with disabilities when considering requests for reasonable accommodations.

Contact the Law Offices of Renee Lazar at 978-844-4095 to schedule a FREE one hour no obligation consultation to determine whether you have a disability discrimination case against your employer.

Set Up A Free Initial Consultation