Unfortunately discrimination in the workplace is all to prevalent. When most of us think of discrimination, the categories most likely to come to mind are race and gender. What a lot of people don't realize is that handicap discrimination is just as serious of a problem. To be discriminated against on the basis of handicap does not require a debilitating handicap such as paralysis. Massachusetts General Laws Chapter 151B is designed to cover the whole gamut of potential handicaps. 

To be successful in a handicap discrimination case, the following elements must be established by the plaintiff:

1.     That s/he is handicapped;

2.     That s/he is a “qualified handicapped person”; and

3.     That s/he was terminated as a result of his/her handicap.

See Russell v. Cooley Dickinson Hosp., Inc., 437 Mass. 443, 449 (2002), citing Dartt v. Browning–Ferris Indus., Inc. (Mass.), 427 Mass. 1, 7 (1998). 

The term “handicap” means the person has a physical or mental impairment which substantially limits one or more major life activities of a person, there is a record of having such an impairment, or the person is regarded as having such an impairment. M.G.L. c. 151B, §1(17).

Mass. Gen. Laws c. 151B, § 1(16) defines a “qualified handicapped person” as “a handicapped person who is capable of performing the essential functions of a particular job, or who would be capable of performing the essential functions of a particular job with reasonable accommodation to his handicap.”

An employer must provide a handicapped employee with an accommodation unless doing so would prove to be an undue hardship on the employer's business. An employer's duty to provide an employee with an accommodation may be triggered in two situations. The first situation arises when the employee notifies the employer that s/he is a qualified handicapped person and requires an accommodation. The second situation arises when the employee does not request a reasonable accommodation, but the employer knows or should know that the employee is handicapped and might require a reasonable accommodation. (See Massachusetts Commission Against Discrimination Guidelines). An employer should now that an employee is handicapped and requires a reasonable accommodation if a reasonable person in the employer's position would know that the employee is handicapped and required an accommodation. In most instances, however, the burden remains on the handicapped employee to notify his/her employer of the disability and to request a reasonable accommodation.

Once an employee requests an accommodation, or the employer is otherwise placed on notice of the need for an accommodation, the employer has a duty to make a reasonable effort to determine an appropriate accommodation (29 CFR 1630). An employer may refuse to hire or chose to terminate a handicapped individual by proving “that there is a ‘reasonable probability of substantial harm’ to the employee or others.” Everett v. 357 Corp., 453 Mass. 585, 607 (2009), quoting Mass. Comm’n Against Discrim. Guidelines: Employment Discrim. on the Basis of Handicap § X.C.3 (2007).  

To state a prima facie case of handicap discrimination under M.G.L. c. 151B, §4(16) based upon a failure to accommodate, the plaintiff must show:

1.     S/he is a handicapped person within the meaning of the statute;

2.     S/he is qualified to perform the essential functions of the job with or without reasonable accommodation;

3.     S/he requested a reasonable accommodation; and

4.     S/he was prevented from performing his/her job because his/her employer failed to reasonably accommodate the limitations associated with his/her handicap. 

In order to succeed on a failure to accommodate claim, a plaintiff must demonstrate that s/he suffered some sort of harm as a result of the employer's failure to accommodate. If no harm is suffered, there is unlikely to be a successful cause of action against the employer. 

Both the employer and the employee must approach the accommodation process in good faith. Russell v. Cooley Dickinson Hosp., Inc.,437 Mass. 443, 457 (2002). This means that "the employer need not provide the best accommodation available, or the accommodation specifically requested by the individual with the handicap. Rather, the employer must provide an accommodation . . . that is effective for its purpose.” Finlan v. Verizon New England, Inc., 74 Mass. App. Ct. 1127 (2009), quoting MCAD Guidelines: Employment Discrim. on the Basis of Handicap, Chapter 151B, § II.C (1998). An employer is not required to substantially change a job's standards, create a new position for the employee, or waive an employee’s inability to perform an essential job function. Furthermore, an employee requesting an accommodation must cooperate with the employer’s requests for medical records, allow the employer to communicate with his/her physician, and be open to alternative accommodations. 

The key to the accommodation process is "reasonableness." The accommodation requested needs to be reasonable, as does the accommodation provided. Both the employer and the employee must act reasonably throughout the process. 

If you or someone you know have been the victim of workplace handicap discrimination, please contact my office to discuss you options.