disability discrimination

Disability Discrimination In The Workplace

Since January 1, 2009, a plaintiff's burden of proof in disability discrimination case has become significantly lighter.   While this is good news for plaintiffs, for employers it means that virtually any request from an employee with a known serious health condition should probably be treated as a request for an accommodation.   Handicap discrimination cases now more commonly involve episodic conditions that even a few years ago would never have made it to trial,  however, now that the ADA Amendments Act (ADAAA) has gone into effect will likely reach a jury.

State and federal laws including M.G.L. 151B and the Americans with Disabilities Act of 1990 (ADA)  prohibit employers from firing, refusing to hire or rehire, or otherwise discriminating against qualified handicapped employees because of disability. Employers are likewise 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." Under the law, a "handicapped person" as any person who (a) has a physical or mental impairment which substantially limits one or more major life activity, (b) has a record of such impairment, or (c) is regarded as having such an impairment. Further, a "qualified" handicapped person must be able to perform the essential functions of the job, with or without a reasonable accommodation. This definition has been confusing employers, attorneys, and clients for more than a decade.

 

Who Is Disabled?

Since 1992 when the ADA took effect, the answer to this question has been endlessly debated inside and outside courtrooms.  In 2008, the EEOC attempted to clarify the answer to this question with the ADA Amendments Act (ADAAA) which reversed conservative Supreme Court decisions of the late 1990's. Before the 2008 amendments, courts' acceptance of persons as as being substantially limitated in a major life activity were "interpreted strictly to create a demanding standard for qualifying as disabled ...." By contrast, the ADAAA “reinstates a broad scope of protection” by expanding the definition of “disability.” For example, under the ADAAA, episodic conditions such as diabetes, MS, or cancer treatment can meet the definition of disability if it would substantially limit a major life activity when active.

"Major life activities" have also been clarified to include caring for oneself, performing manual tasks, seeing, hearing, eating, sleeping, walking, standing, sitting, reaching, lifting, bending, speaking, breathing, learning, reading, concentrating, thinking, communicating, interacting with others, and working. Other major bodily functions related to the immune system or cell growth can be "major life acivities" as well which arguably includes the treatment for a variety of serious health conditions as disabilities.

Failure To Provide A Reasonable Accommodation

An employer may be liable for disability 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 disabled 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.

 

Interaction of the ADA and FMLA

Employees who have 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.

If you believe you are being discriminated against on the basis of handicap, or if you are seeking guidance about your legal obligations regarding reasonable accommodations, please email or call Plaza Law Group so that we can help you understand your rights and legal options.

 

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