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Fact Sheet: Employment Discrimination on the Basis of Handicap

Under Massachusetts law (Chapter 151B) and the federal Americans with Disabilities Act, it is illegal for an employer, an employment agency, or a labor organization (such as a union) to discriminate against someone based on his or her disability or handicap. The Massachusetts Commission Against Discrimination enforces these laws as well as other Massachusetts laws that prohibit disability discrimination in housing, public accommodations, and credit.

"Qualified Handicapped Persons" Are Protected By These Laws

1. What is a handicap or a disability?

A handicap or a disability is a physical or mental condition that substantially limits one or more of a person's major life functions. Examples of major life functions include seeing, hearing mobility, and working. Massachusetts law uses the word "handicap" and the federal Americans with Disabilities Act uses the word "disability"- the laws are very similar.

Examples of impairments that may limit a major life function include paraplegia, blindness, deafness, epilepsy, AIDS or being HIV positive, diabetes, heart disease, cancer, mental retardation, psychiatric disabilities and learning disabilities.

Alcoholism is also a disability covered by these laws, but recreational use of alcohol is not covered. People with addictions to illegal substances who are currently using drugs illegally are not protected. Persons who are not current illegal drug users but are discriminated against based on their past history of drug addiction are protected.

The law protects people who are discriminated against based upon their record of disability. For example, a person who has a history of hospitalization for a psychiatric disability but who is not presently mentally ill is protected if s/he is refused employment based on her/his history of hospitalizations. In addition, the law protects people who are discriminated against based upon other people's belief that they are disabled, even if they are not disabled. A person who is fired from his job because the employer believes s/he has AIDS is protected under the law even if the employee does not have AIDS.

2. Who is "qualified"?

In order to be protected, a person with a disability must be "qualified". "Qualified" means able to perform the essential functions of the job with or without reasonable accommodation.

Essential Functions: The law recognizes that jobs may have many functions. Some parts of the job are essential and some are not. If you can do the essential functions of a job, you cannot be discriminated against because of your disability. For example, a person who has a disability applies for a job as one of a group of ten mail clerks for a large company. Because of his/her disability s/he does not drive. The main functions of the mail clerk job are sorting and distributing incoming mail to various departments and processing outgoing mail. Sometimes one of the mail clerks is asked to perform miscellaneous tasks which involve driving, such as picking up supplies. Driving would probably not be an essential function of the job of mail clerk and so it would be illegal to refuse to hire the applicant because his/her disability prevented him/her from driving.

Reasonable Accommodation: An employer must make reasonable accommodations to allow a disabled person to work. Reasonable accommodations may include changes in the physical work area such as installing a ramp or providing adaptive equipment such as an accessible telephone (such as a TTD), making changes in job requirements such as assigning certain non- essential job functions to another employee, allowing an employee to perform a job in a different way (for example, sitting down instead of standing up), or making changes in work schedules to allow employees to take periodic rests or keep medical appointments. An employer may require a person who needs a reasonable accommodation to provide documentation of her/his disability and the need for the reasonable accommodation. Although an employer does not necessarily have to provide the exact accommodation requested, failure to provide a reasonable accommodation may violate the law.

Undue Hardship: An employer does not have to provide an accommodation if it would cause undue hardship. Some of the factors to be considered in determining undue hardship are: the nature and cost of the accommodation needed; the overall size and resources of the employers business; the number of employees; the number and type of facilities, and the size of budget; and the composition and structure of the employers work force.

Reasonable Standards: An employer is permitted to establish reasonable qualification standards for applicants and employees. Examples of such qualification standards are the ability to type 60 words a minute, a Masters degree in Library Science, or at least 2 years of nursing experience. An employer is permitted to reject a person with a disability who is unable to meet these qualification standards with reasonable accommodation unless the qualification standards are an excuse for illegal discrimination.

Employment Tests

Employers are permitted to test applicants and employees to make sure that they can perform essential job functions, but they must give the test in a way that does not unfairly discriminate against a person because of his or her disability. For example, a person with a speech impediment who is applying for a clerical position may not perform well on a test which requires oral responses. However, if the job does not require clear speech, another type of test must be given (such as a written test) which does not unfairly discriminate against the applicant.

If you believe you have been discriminated against, contact the MCAD immediately because, in most circumstances, you must file a charge at the MCAD within 300 days of the alleged discriminatory action.