Title I of the Americans with Disabilities Act of 1990 (ADA) prohibits employers from discriminating against qualified individuals with disabilities in job application procedures, hiring, firing, advancement, compensation, job training, and other terms, conditions, and privileges of employment. The ADA covers employers with 15 or more employees, including state and local governments. It also applies to employment agencies and to labor organizations. The ADA’s nondiscrimination standards apply to federal sector employees under section 501 of the Rehabilitation Act.
Under the ADA, an employer is required to make a reasonable accommodation to the known disability of a qualified applicant or employee if it would not impose an “undue hardship” on the operation of the employer’s business. Undue hardship is defined as an action requiring significant difficulty or expense when considered in light of factors such as an employer’s size, financial resources, and the nature and structure of its operation.
Charges of employment discrimination on the basis of disability may be filed at any U.S. Equal Employment Opportunity Commission (EEOC) field office. For the appropriate EEOC field office in your area, contact the EEOC directly at 1-800-669-4000 (TTY: 1-800-669-6820), or visit their website at: http://www.eeoc.gov/field/index.cfm.
Disability Rights Laws
The Attorney General’s Office enforces federal and state laws protecting the rights of individuals with disabilities. The AGO enforces Titles II and III of the Americans with Disabilities Act, the Massachusetts Public Accommodation Law (M.G.L. c. 272, s. 92A, 98, and 98A), and the Massachusetts Equal Rights Act (M.G.L. c. 93, s. 103), and focuses on eliminating discriminatory barriers to services, programs, and ensuring accommodations for people with disabilities.
An individual with a disability is a person:
- with a mental or physical impairment that substantially limits one or more major life activities;
- who has a history of such an impairment; or
- who is perceived (even if erroneously) as having such an impairment.
Among the many issues the AGO works to address are the following:
- Fair housing rights for individuals with disabilities.
- Access to town and municipal meetings, polling sites, and other governmental programs and services.
- Access to retail establishments, restaurants, stores, transportation, entertainment facilities and other places of public accommodation.
The Attorney General works collaboratively with other state attorneys general and the Civil Rights Division of the U.S. Department of Justice, and various state agencies, in addition to working cooperatively with a network of local disability rights advocates, commissions, independent living centers, community access monitors, and others in the disability community.
Employment Rights of Individuals with Disabilities
The Massachusetts Antidiscrimination Law (M.G.L. c. 151B ) is the state law that prohibits discrimination in employment against persons with disabilities. The ADA covers public and private employers with 15 or more employees. Chapter 151B applies to public and private employers with 6 or more employees. The ADA and Chapter 151B provide that an employer may not discriminate against a “qualified individual with a disability,” which is defined as a person who can perform the “essential functions of a job, with our without a reasonable accommodation.”
A qualified individual with a 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 fundamental job duties that you must be able to perform with or without a reasonable accommodation. A job function is more likely to be “essential” if it requires special expertise, a large amount of time, and/or if that function was listed in the written job description prepared before the employer advertised for or interviewed job applicants. An employer cannot refuse to hire you because you have a disability that prevents you from fulfilling duties that are not essential to the job. A reasonable accommodation is an employment-related modification that an employer must make in order to ensure equal opportunity for a person with a disability to:
- Apply for and test for a job;
- Perform essential job functions; and
- Receive the same benefits and privileges as other employees.
An 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).
If an accommodation would cause “undue hardship,” an employer is not legally required to provide it. 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:
- the nature and cost of the accommodation;
- the impact of the accommodation on the operation of the facility involved, taking into account the facility’s overall resources and the number of its employees; or
- the manner in which the employer’s business operates, taking into account its size and financial resources.
An employer is prohibited from asking an applicant or employee if he/she has a disability, or the extent to which he/she is disabled. An employer may ask whether the applicant is able to perform job-related functions, but not questions intended to determine whether or not the person has a disability. For example, an employer may be permitted to ask an applicant whether he/she can lift a 50 pound bag four times per shift, but not whether or not he/she has a bad back.
Employment criteria and tests which tend to screen out or identify individuals with disabilities are prohibited unless they measure one’s ability to perform an essential job function. Job descriptions should clearly list the qualifications and essential functions of the job. An employer is required to select employment tests that measure an individual’s job-related abilities, not defects in sensory, manual or speaking skills where those skills are not necessary to perform an essential job function. For example, exam accommodations for an applicant with a hearing impairment might include extra time, a written exam, or an interpreter.