Your rights under the law
There are several federal and 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:
- with a mental or physical impairment that limits one or more major life activities; or
- who has a history of such an impairment; or
- 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" <LINK> an employer is not legally required to provide it. "Undue hardship" is discussed below.
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:
- the nature and cost of the accommodation itself;
- the impact of the accommodation on the operation of the facility involved, taking into account the overall resources and the number of its employees;
- 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.
Permissible and impermissible questions
An employer may not inquire whether an applicant or employee 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.
An employer may not require an applicant to take a medical exam prior to making an offer of employment. Once an offer of employment has been made, an employer may condition the offer on the passing of a medical exam, but only: (1) if all entering employees in the same job category, are required to pass the same exam or (2) if the medical exam is necessary to develop a reasonable accommodation. In addition, any medical information collected must be kept confidential.
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, and 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.
Enforcement of these rights and protections
Before s/he can file a lawsuit in court, an individual seeking enforcement of employments rights under the ADA must file a complaint with either:
- The Massachusetts Commission Against Discrimination ("MCAD"), the authorized state enforcement agency, within 300 days of the incident (or the last series of incidents) or
- The Equal Employment Opportunity Commission ("EEOC"), the authorized federal enforcement agency, within 300 days of the incident (or the last series of incidents), or within 30 days after the MCAD proceedings have terminated, whichever is shorter.
Complaints should include a clear and concise statement of the facts, including the dates of the unlawful practices and the number of the employees at the company or organization.
Within 90 days of receiving a "right to sue" letter from the EEOC If that is the agency with jurisdiction. If a plaintiff files a lawsuit without having received the right to sue letter, the case may be dismissed.
An individual who believes that an employer has violated his/her rights granted under Chapter 151B must first file a complaint with MCAD.
What type of relief is available under the ADA and Chapter 151B?
The ADA and Chapter 151B generally allow for the same types of remedies. These would include, where appropriate, reinstatement, compensatory damages for front and back pay, damages, and attorneys' fees. The sum of punitive damages and future compensatory damages under the ADA may not exceed the following amounts, per person: $50,000 for employers with 15-100 employees; $100,000 for employers with 101-200 employees; $200,000 for employers with 201-500 employees; $300,000 for employers with more than 500 employees.