Disability Or Handicap Discrimination
Discriminating against an individual based on a disability or handicap is not only wrong it is also illegal. Although sometimes such discrimination is intentional because an employer would rather not deal with an employee who needs an accommodation to do their job, other more well-meaning employers simply don’t know what to do and end up violating a disabled employee’s rights.
Compassion And Expertise
These cases can be extremely complex and sensitive since they deal with two of the most intimate parts of a person’s life – their health and their job. Therefore, it is critical that you don’t go it alone in these situations and have an objective third party who can help you navigate these complex and emotionally charged situations.
At Porter Law, we bring the professional knowledge and expertise you need to manage the emotional and legal issues of these very difficult cases.
How Is ‘Disabled’ Defined?
The first question is whether a person is disabled within the meaning of Massachusetts law and the Americans with Disabilities Act (ADA). The standard is whether a person is “substantially limited in a major life activity,” which is very broadly defined and can include sleeping, eating, or caring for oneself or one’s family.
Importantly, while working is a major life activity, you do not have to show that it is the major life activity that is limited in order to be considered disabled or handicapped under the law. The disability in question does not need to be permanent and can be temporary in nature. A disability can also be due to an on-the-job injury or something that happened outside of work. It can be physical or mental in nature, and this is a relatively easy standard to meet.
If You Qualify As Disabled
If a person is deemed handicapped or disabled, the question is whether they are a qualified handicapped individual. That means that they are able to perform the essential functions of their job with or without a reasonable accommodation. This is where things can get complicated, and the help of an experienced attorney is essential.
What Is A Reasonable Accommodation?
An inquiry is necessary to determine what the employee needs to be able to perform the essential functions of their job. In other words, what sort of accommodation do they need and for how long?
The next question is whether that accommodation is reasonable, or would it create an undue burden for the employer? What is critical in these cases is that the employer cannot simply say no or that there’s nothing they can do for you.
An Interactive Process
An employer must engage in what is known as the “interactive process,” which is much like a tennis match in which proposals are made back and forth between the employer and the employee. If the employer fails to engage in that process, that, in and of itself, is likely a violation of the law.
Likewise, the employee must engage in that process in good faith, and it is often helpful to have an attorney guide the interactive process on both sides.
The bottom line is that if you can continue to do your job with a reasonable accommodation – and that will depend on the circumstances of your specific situation – then your employer needs to provide you with that accommodation unless they can show that the accommodation is unreasonable or an undue burden to them.
Associational Disability Discrimination
In addition, both state and federal laws prohibit employers from engaging in “associational” handicap and disability discrimination. In particular, the ADA specifically forbids discrimination against “a qualified individual because of the known disability of an individual with whom the qualified individual is known to have a relationship or association.”