Disability / Handicap Discrimination
Under Massachusetts Fair Employment Practices Act (M.G.L. 151B) and the federal Americans with Disabilities Act of 1990 (ADA), employers are prohibited from firing, refusing to hire or rehire, or otherwise discriminating against qualified handicapped employees because of disability. Massachusetts law defines a “handicapped person” as any person who:
- Has a physical or mental impairment which substantially limits one or more major life activity,
- Has a record of such impairment, or
- Is regarded as having such an impairment.
Examples of handicaps include vision or hearing impairment, a heart condition, or depression. A “qualified” handicapped person must be able to perform the essential functions of the job, with or without a reasonable accommodation.
Handicap discrimination can take on many forms including paying handicapped employees less, failing to promote, and excluding handicapped employees from certain positions. An employer may also be liable for handicap discrimination where it fails to grant reasonable accommodations, which can range from allowing time off for medical reasons to modifying work schedules to making the workplace and usable and accessible for handicapped employees. An employer may only refuse to grant a qualified handicap employee accommodations where it can demonstrate that such accommodations would pose an undue hardship.
Numerous types of evidence may be gathered to substantiate claims for handicap discrimination. Such evidence includes:
- Comments indicating that the handicap was perceived by the employer as an unwarranted expense or as a negative attribute,
- A record on the part of the employer of treating handicapped individuals worse than similarly situated non-handicapped employees, or
- A practice on the part of the employer of asking illegal pre-employment inquiries relating to handicap.
Moreover, employees who suffer a handicap or disability should be aware of their rights under the Family & Medical Leave Act (FMLA). Under the FMLA, employers are required to grant employees up to 12 workweeks of unpaid leave during any 12-month to seek treatment for a serious medical condition. Following the end of an employee’s FMLA leave, the employer must restore the employee to the same, or a substantially similar, position. In order to qualify for FMLA leave, an employee must have completed at least 12 months of employment, must have worked at least 1,250 hours in the preceding 12 month period, and the company must employ at least 50 workers within 75 miles.
Finally, employers are prohibited from discriminating on the basis of handicap in making hiring decisions. According to the Massachusetts Commission Against Discrimination’s Guidelines on Handicap Discrimination, “employment criteria must be designed to measure only those abilities necessary to perform the essential functions of a job.” Not surprisingly, there are certain questions during the hiring process that an employer may and may not ask.
Employer May Ask …
- Can you perform any or all of these specific job functions?
- Can you meet the attendance requirements?
- What was your attendance record at your prior place of employment?
- Do you currently engage in the illegal use of drugs?
Employer May Not Ask …
- Do you have a handicap/disability?
- Do you have any job-related handicaps/limitations that would prevent you from doing the job?
- Have you ever received Workers’ Compensation?
- Have you ever been hospitalized/treated for medical or mental conditions?
- Have you ever been absent from work due to illness?