Employment Rights of Individuals With Disabilities in Massachusetts

What are the federal (United States) and state (Massachusetts) laws
which 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 statute is Chapter 151B of
the Massachusetts General Laws.

The ADA and Chapter 151B are essentially the same in their
prohibition of employment discrimination against individuals with
disabilities. Chapter 151B, however, covers some private employers and
certain medical conditions not covered by the ADA.

Which employers are covered by the ADA and Chapter 151B?

Title I of the ADA covers the employment practices of private
employers. Title II covers the employment practices of public employers
(all units of state and local government). The ADA applies to employers
with 15 or more employees.

Chapter 151B also covers the employment practices of private and
public employers. With regard to private employers, Chapter 151B
provides somewhat broader coverage in that it applies to employers with
6 or more employees.

How do these laws protect employment rights?

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), which is defined
as a person who can perform the "essential functions" of a job, with or
without a "reasonable accommodation."

How do these laws define "individual with a disability?"

The three part definition covers individuals:

1. with a mental or physical impairment that limits one or more major life functions; or
2. who have a history of such an impairment; or
3. who are perceived (even if erroneously) as having such an impairment.

Both laws cover infection with HIV, even if one is asymptomatic, and AIDS.

Who fits the description of a "qualified individual with a disability?"

This term 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.

What are the "essential job functions?"

Essential functions are narrowly defined to include fundamental job
duties. 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.

Essential functions are narrowly defined to include fundamental job
duties. 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.

What is meant by "reasonable accommodation?"

"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" 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 believes that it is unable to provide a requested accommodation, what can it do?

If an employer can demonstrate that the requested accommodation
imposes an "undue hardship" on its operations (financial or
administrative), 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.

What criteria are used to determine whether an accommodation is 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:

1. the nature and net cost of the accommodation itself;
2. 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;
3. 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.

Are there any additional circumstances which would justify an
employer's refusal to hire a qualified individual with a disability?

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.

Is an employer prohibited from asking a job applicant questions related to the existence and nature of a disability?

An employer is prohibited from inquiring 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.

Is it permissible for employers to require applicants to take medical exams as a condition to being considered for the job?

Prior to making an offer of employment, an employer may not require
an applicant to take a medical exam. 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 necessary to develop a reasonable accommodation. In addition,
   any medical information collected must be kept confidential.

What limitations are there on employers in the establishment of
qualification standards, tests or other criteria with regard to the
hiring and placement process?

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.

How does an individual seek agency enforcement of employment rights granted under the ADA?

An individual seeking agency enforcement of employments rights under the ADA must file a complaint with either:

1. The Massachusetts Commission Against Discrimination ("MCAD"), the
   authorized state enforcement agency, within six months of the incident
   (or the last series of incidents).
2. 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.

At what point may an individual file a private lawsuit via the ADA?

An individual seeking to file a private lawsuit pursuant to the ADA
against a private employer must first file a complaint with either the
EEOC or MCAD. With regard to ADA lawsuits against public employers, the
individual should also file an agency complaint with the EEOC.

How does an individual seek redress for violation of employment rights granted under Chapter 151B?

An individual who believes that an employer has violated his/her
rights granted under Chapter 151B and seeks agency enforcement of those
rights, must 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.

Resources for Employment Information

Equal Employment Opportunity Commission (EEOC)
(617) 565-3200
Room 409-B JFK Federal Office Building;
Government Center Boston, MA 02203

Massachusetts Commission Against Discrimination (MCAD)
(617) 727-3990
1 Ashburton Place; Room 601
Boston, MA 02108

New England Disability and Business Technical Assistance Center
(800) 949-4232 OR (617) 695-1225
V/TTY 374 Congress Street, Suite 301
Boston, MA 02210

Job Accommodations Network (JAN) President's Committee on Employment of People with Disabilities
(800) 526-7234 (Voice or TDD)
West Virginia University:
918 Chestunut Ridge Road; Suite 1 P.O. Box 6080
Morgantown, WV 26506-6080

Governor's Commission on Employment of People with Disabilities
(617) 626-5190
19 Staniford Street, 3rd Floor
Boston, MA 02114

Massachusetts Developmental Disability Council (MDDC)
(617) 727-6374 (V/TDD)
600 Washington Street, Room 670
Boston, MA 02111

Massachusetts Office on Disability (MOD)
(617) 727-7440, (800) 322-2020 (V/TDD)
Client Assistance Program
One Ashburton Place, Room 1305
Boston, MA 02108