Disability Discrimination in the Workplace
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Disability- actual or perceived- is a protected class under federal and state anti-discrimination laws. If an employer terminates someone, or takes some other adverse action against them, because they are disabled, that is one form of disability discrimination.
Additionally, employers have certain obligations to make reasonable accommodations to allow an employee with a disability to perform their job. Failure to do so, provided the requested accommodations are "reasonable" under the law, is another form of disability discrimination. Finally, it is also unlawful to discriminate because you believe someone's disability will affect their ability to do their job, even if it will not. This is called perceived disability discrimination. These concepts are explained briefly below- you can also read some examples of individuals we have helped with disability issues in the workplace. |
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What is a Disability?
A disability under the disability discrimination laws means a physical or mental impairment that substantially limits one or more major life activities.
"Substantially limiting" under the ADA means the impairment is either permanent or long term. If you have a short term condition, you may still qualify for benefits and protection under the Massachusetts Paid Family Leave Act, but will most likely not be covered by the disability discrimination laws unless or until it becomes a more long term problem.
The condition, mental or physical, must also substantially limit a "major life activity." Things that are recognized as major life activities include walking, seeing, reading, bending and communicating. It also includes major bodily functions. These can include the immune system and digestive, bowel, bladder, respiratory, neurological, circulatory, endocrine and reproductive functions.
"Substantially limiting" under the ADA means the impairment is either permanent or long term. If you have a short term condition, you may still qualify for benefits and protection under the Massachusetts Paid Family Leave Act, but will most likely not be covered by the disability discrimination laws unless or until it becomes a more long term problem.
The condition, mental or physical, must also substantially limit a "major life activity." Things that are recognized as major life activities include walking, seeing, reading, bending and communicating. It also includes major bodily functions. These can include the immune system and digestive, bowel, bladder, respiratory, neurological, circulatory, endocrine and reproductive functions.
Disability Discrimination: Termination Based on Disability
A direct example of disability discrimination is when a disabled employee who is able to do their job without accommodation is terminated because of discomfort with or assumptions about their disability. We see this most often with mental health conditions, but it has occurred with physical disabilities as well.
Like any other form of discrimination, if you claim disability discrimination, your employer will have to provide evidence of a legitimate, non-discriminatory reason for the action. Examples include documented poor performance, company reorganization, financial considerations, or employee violations of policy.
The employee must then establish that the claimed reason is pretext for discrimination- in other words, something manufactured to cover the true motive for the employment action.
Like any other form of discrimination, if you claim disability discrimination, your employer will have to provide evidence of a legitimate, non-discriminatory reason for the action. Examples include documented poor performance, company reorganization, financial considerations, or employee violations of policy.
The employee must then establish that the claimed reason is pretext for discrimination- in other words, something manufactured to cover the true motive for the employment action.
Disability Discrimination: Failure to Accommodate
If you have a disability (mental or physical) that affects your ability to perform the essential functions of your job, you are entitled to reasonable accommodations for that disability. It is the employee's obligation to make the request for an accommodation, after which the employer must engage in an "interactive dialogue" about the accommodation.
Whether an accommodation is reasonable, and therefore required, can vary significantly based on the facts. Special chairs or other office furniture to accommodate physical issues like back pain are common accommodations. Remote work in many cases is a reasonable accommodation, though in some cases employers have made the argument that physical presence is required for either the actual tasks related to the job or for expected communication and collaboration. Additional time off to attend to treatment is another common accommodation. The key question is whether the accommodation can be done without undue burden on the employer, and will allow you to perform the essential functions of your job despite the disability.
You will be expected to provide information from your health care provider about the nature of your disability and the requested accommodation.
Whether an accommodation is reasonable, and therefore required, can vary significantly based on the facts. Special chairs or other office furniture to accommodate physical issues like back pain are common accommodations. Remote work in many cases is a reasonable accommodation, though in some cases employers have made the argument that physical presence is required for either the actual tasks related to the job or for expected communication and collaboration. Additional time off to attend to treatment is another common accommodation. The key question is whether the accommodation can be done without undue burden on the employer, and will allow you to perform the essential functions of your job despite the disability.
You will be expected to provide information from your health care provider about the nature of your disability and the requested accommodation.
Disability Discrimination: Perceived Disability
Firing or otherwise taking action against an employee because they are "regarded as" having a disability is also prohibited discrimination. This is also known as perceived disability discrimination. There must be some kind of actual underlying impairment for this to apply, and it often comes into play when the employer has beliefs or perceptions about the effect of the impairment that are not accurate.
This issue often arises when an individual returns to work after a medical leave, especially in cases where the reason for the leave was a mental health issue. For this reason, you should also be aware of your rights against retaliation for taking medical leave under the federal FMLA or the Massachusetts Paid Family Medical Leave Act
This issue often arises when an individual returns to work after a medical leave, especially in cases where the reason for the leave was a mental health issue. For this reason, you should also be aware of your rights against retaliation for taking medical leave under the federal FMLA or the Massachusetts Paid Family Medical Leave Act
Time Limits for Discrimination Claims
In most situations, the statute of limitations for discrimination lawsuits, including disability discrimination, is 300 days, or approximately 10 months. You may see articles on the internet that say the deadline is 180 days or six months. This is true under federal law but in Massachusetts you have some additional time even for federal claims.
This is the deadline for filing your initial complaint with either the Equal Employment Opportunity Commission or the MCAD. If you decide to remove your complaint from either agency, you will have additional time to file a complaint in court. For state claims, you have three years from the event giving rise to the claim. For federal claims before the EEOC, you may have additional time.
How this works: if you are terminated on December 21, 2019, you have until October 16, 2020 to file with MCAD or EEOC. If you file in MCAD and then remove the complaint, you still have until December 21, 2022 to file a civil complaint in court.
Sometimes MCAD or the EEOC will take a long time processing your complaint. We have seen cases stay in MCAD past the three year statute of limitations. In those cases, you essentially lose your right to bring your claim in court if you allow it to stay in MCAD past the statute of limitations deadline.
If you have filed an MCAD complaint and it is still pending at MCAD after two and a half years or more, you should consider withdrawing from MCAD and filing in court before the three years are up.
This is the deadline for filing your initial complaint with either the Equal Employment Opportunity Commission or the MCAD. If you decide to remove your complaint from either agency, you will have additional time to file a complaint in court. For state claims, you have three years from the event giving rise to the claim. For federal claims before the EEOC, you may have additional time.
How this works: if you are terminated on December 21, 2019, you have until October 16, 2020 to file with MCAD or EEOC. If you file in MCAD and then remove the complaint, you still have until December 21, 2022 to file a civil complaint in court.
Sometimes MCAD or the EEOC will take a long time processing your complaint. We have seen cases stay in MCAD past the three year statute of limitations. In those cases, you essentially lose your right to bring your claim in court if you allow it to stay in MCAD past the statute of limitations deadline.
If you have filed an MCAD complaint and it is still pending at MCAD after two and a half years or more, you should consider withdrawing from MCAD and filing in court before the three years are up.
How Our Employment Lawyers Can Help
We can help you navigate these issues and get clarity on your rights and obligations in the face of an actual or imminent employment termination or other instances of discrimination. You can use the button below to schedule a call back from a member of our team, or give us a call at 781-784-2322.
