Disability discrimination claims under both the Massachusetts Fair Employment Practices Act and the Americans with Disabilities Act are among the most sophisticated claims that an employment lawyer can undertake. To maximize the chance of overcoming summary judgment and prevailing at trial, there are several technical points worth emphasizing when bringing claims for handicap discrimination, retaliation, failure to investigate, and failure to accommodate.
1. Liberal Interpretation: The Massachusetts Legislature has directed that the provisions of M.G.L. c. 151B, §9 “shall be construed liberally” for the accomplishment of the remedial purposes of the statute. Likewise, as the Massachusetts Commission Against Discrimination (“MCAD”) acknowledged in Anderson v. Pierce Insulation, the ADA Amendments Act of 2008 made the ADA more consistent with the broad coverage contemplated under M.G.L. c. 151B: “The MCAD has traditionally interpreted the term ‘handicap’ broadly in order to effectuate the protections of Chapter 151B. This liberal interpretation of Chapter 151B is consistent with Congress’s 2008 amendments to the ADA.” Indeed, like M.G.L. c. 151B, the ADA Amendments make clear that the “definition of disability … shall be construed in favor of broad coverage of individuals under this Act, to the maximum extent permitted by the terms of this Act.”
2. Substantial Limitation Showing: As background, in order to be considered handicapped or disabled, an employee must be “substantially limited” in at least one “major life activity.” Employers often attempt to argue that, while the employee’s medical condition affects a major life activity, the impairment does not rise to the level of a substantial limitation. Such a showing, however, is not a high bar. Under 29 C.F.R. §1630.2(j)(1)(iii), for example, the ADA Amendments make clear that “[t]he primary object of attention in cases brought under the ADA should be whether covered entities have complied with their obligations and whether discrimination has occurred, not whether an individual’s impairment substantially limits a major life activity.” The regulations go on to state that “the threshold issue of whether an impairment ‘substantially limits’ a major life activity should not demand extensive analysis”.In addition, as the District Court of New Hampshire in Gage v. Rymes Heating Oils acknowledged, the “substantial limitation standard ‘is not meant to be … demanding,’ and a plaintiff ‘usually will not [be required to produce] scientific, medical, or statistical analysis’ to show that her impairment imposes a substantial limitation.” At the very least, consistent with the First Circuit’s ruling in Cook v. MHRH, the determination of whether an employee is “substantially limited” is a factual matter that falls squarely within the jury’s ken.
3.Episodic Disorders: The MCAD Handicap Discrimination Guidelines are unequivocal that “[c]hronic or episodic disorders that are substantially limiting may be handicaps.” Interpreting the ADA, federal courts agree. In Taylor v. Phoenixville School District, for example, the Third Circuit held that “[c]hronic, episodic conditions can easily limit how well a person performs an activity … [and] repeated flare-ups … can have a cumulative weight that wears down a person’s resolve and continually breaks apart longer-term projects.” Similarly, in Service v. Union Pacific R.R., the Eastern District of California noted that an employee “need not be in a constant state of distress or suffer an asthmatic attack to qualify as disabled under the ADA.”
4. Short-Term Disorders: Neither Massachusetts nor federal law set a minimum duration for a medical condition to be considered a handicap. Rather, under 29 C.F.R. §1630.2(j)(1)(ix), the ADA regulations state that even the “effects of an impairment lasting or expected to last fewer than six months can be substantially limiting … .” As a result, temporary conditions can constitute a disability. As examples, serious, pregnancy-related ailments such as gestational diabetes and preeclampsia may entitle an employee to a reasonable accommodation under the Fair Employment Practices Act and the ADA. Such an accommodation could include time off beyond the twelve weeks contemplated under Family and Medical Leave Act.
A. Handicap Discrimination: A handicap discrimination claim based on circumstantial evidence begins with a prima facie case which, as the Massachusetts Supreme Judicial Court (“SJC”) outlined in Labonte v. Hutchins & Wheeler, requires an employee to satisfy the following elements: (1) the existence of a handicap or perception as being disabled; (2) qualification to perform the essential functions of the position, with or without a reasonable accommodation; and (3) an adverse employment action. Once the employee satisfies each element of the prima facie case, the burden of production shifts to the employer to provide a legitimate, non-discriminatory reason for the adverse action in question. In response and in order to ultimately prevail, as the SJC stated in Bulwer v. Mt Auburn Hospital, the employee must present evidence from which a reasonable jury could infer that the reason given was not the real reason. Such a showing would allow a jury to then infer pretext for disability discrimination. As discussed here, there are several ways in which pretext may be inferred.
1. Prima Facie Case: It is important to emphasize that establishing a prima facie case, which includes a showing that the employee is handicapped, is a relatively low threshold. Specifically, the Supreme Court in Texas Dept. of Community Affairs v. Burdine held that the “burden of establishing a prima facie case of disparate treatment is not onerous.” Similarly, in Sullivan v. Liberty Mutual Insurance, the SJC noted that the “plaintiff’s initial burden of establishing a prima facie case is not intended to be onerous. … [i]t is meant to be a small showing that is easily made.” Notably, this principle also applies to cases based on other forms of unlawful discrimination — including age, sex, and pregnancy discrimination.
2. Qualified Element: Focusing on the second element, the District Court of Massachusetts in Williams v. Frank observed that an allegation of poor performance “is more logically viewed as a defense to be raised by the employer at the second stage of the McDonnell Douglas framework rather than an impediment to the plaintiff’s prima facie case”. The First Circuit in Brennan v. GTE Government Systems further noted that considering employer’s allegations at the prima facie “qualified” stage instead of the “pretext” stage improperly conflates the two burdens, and “would be an onerous endeavor, beyond the confines of a prima facie case.” This analysis is applicable to other workplace discrimination claims as well.Unique to disability discrimination claims, however, is the concept that conduct resulting from a disability must be considered to be part of the handicap, rather than a separate justification for the adverse employment action. In Forrest v. Wal-Mart, for example, the MCAD found the employee was not “unqualified” because there were reasonable accommodations that the employer could have granted that would have enabled the employee to perform the essential functions of her position.This holding is consistent with federal court decisions interpreting the ADA. In Humphrey v. Memorial Hospital Association, the Ninth Circuit opined “conduct resulting from a disability is considered to be part of the disability, rather than a separate basis for termination.” The decision further observed that the “link between the disability and termination is particularly strong where it is the employer’s failure to reasonably accommodate a known disability that leads to discharge for performance inadequacies resulting from that disability.” Likewise, in Barnett v. Revere Smelting & Refining Corp., the Southern District of New York stated that “where an employer asserts excessive absenteeism as a non-discriminatory justification for an employee’s termination, that justification cannot analytically be considered apart from the alleged disability causing the absenteeism.”
B. Retaliation: The burden shifting framework for a retaliation cause of action is identical to a disability discrimination claim, except for the prima facie case. To establish a prima facie case for retaliation, an employee must show that she or he: (1) engaged in protected conduct; (2) suffered an adverse employment action; and (3) a causal connection exists or can be inferred between the protected activity and the adverse actions.
1. Protected Activity: Regarding the first element, it is well-established that requesting a reasonable accommodation is a protected activity. The First Circuit in Soileau v. Guilford of Maine, for instance, observed that “[i]t would seem anomalous … to think Congress intended no retaliation protection for employees who request a reasonable accommodation unless they also file a formal charge. This would leave employees unprotected if an employer granted the accommodation and shortly thereafter terminated the employee in retaliation.”
2. Causal Connection: In Ritchie v. Dep’t of State Police, the Massachusetts Appeals Court held that a “close temporal proximity between the protected activity and the adverse employment action permits an inference of the casual nexus necessary for a finding of retaliation.” Revenge is a dish best served cold; often, employers will intentionally wait before taking an adverse action against an employee who has engaged in protected conduct in order to break the causal chain. An inference of retaliation is possible, however, even where the termination or demotion occurs many many or over a year after the protected conduct. In Rowlett v. Anheuser-Busch, the First Circuit upheld a race discrimination and retaliation verdict under Title VII in the employee’s favor where the termination occurred approximately nine months after a complaint of discrimination had been filed. In Kealy v. City of Lowell, Dep’t of Public Schools, the MCAD found retaliation where the discharge occurred approximately fifteen months after the protected activity.
3. Adverse Action: Under M.G.L. c. 151B, §4(1), the Fair Employment Practices Act prohibits discrimination in the “terms, conditions or privileges of employment,” which includes a termination or demotion as well as less severe punishment such as office transfers, punitive scheduling, and change in responsibilities. This language is broad and, as the Massachusetts Appeals Court held in King v. Boston, “slights or indignities that might seem evanescent” qualify as adverse employment actions. Similarly, the Supreme Court in Burlington N. & Santa Fe Ry. v. White broadly interpreted retaliation claims under Title VII to include adverse actions that would have a “chilling effect” on opposition to discrimination by “dissuad[ing] a reasonable worker from making or supporting a charge of discrimination.” At the very least, as the Massachusetts Appeals Court acknowledged in Bonds v. School Committee of Boston that “when a determination cannot be made as a matter of law that something is or is not adverse employment action, it is for the fact finder to determine.” These definitions and examples of adverse actions apply to other forms of unlawful discrimination claims as well.
C. Failure to Investigate: In College-Town v. MCAD, the SJC found that an employer who is notified of harassment (including harassment based on an employee’s handicap), yet fails to take adequate remedial action, violates M.G.L. c. 151B, §4. As the District Court of Massachusetts acknowledged in Chapin v. University of Massachusetts at Lowell, imposing liability on an employer that does not properly investigate workplace harassment is consistent with the statute’s legislative intent and promotes its broad, remedial purpose: “A deaf ear from management may contribute to and encourage the hostility of the workplace, creating an impression that employees may engage in sexual harassment or discrimination with impunity. … [N]on-action by a supervisory employee, with knowledge that sexual harassment or other prohibited discrimination is occurring in the workplace, is actionable by a victim of the wrongdoing as aiding and abetting under ch. 151B, §4(5).”
1. Adequate Investigation: The MCAD has held – namely in Apsey v. GKA, 26 MDLR 56 (2004) and Barbot v. Hapco Farms, 19 MDLR 133 (1997) – that an employer’s investigation must include, at a minimum: (1) interviewing other witnesses who may have observed the offensive or discriminatory conduct; (2) taking appropriate remedial action reasonably calculated to end the harassment or discrimination; (3) imposing discipline; (4) maintaining a well-publicized and enforced anti-harassment policy; and (5) producing evidence that it provided adequate training to its managers and supervisors on how to identify and respond to a harassment or discrimination complaint.
2. Reigning in Keeler: Management-side attorneys sometimes rely on the First Circuit’s ruling in Keeler v. Putnam Fiduciary Trust to argue that Massachusetts does not recognize a failure to investigate cause of action outside of sexual harassment claims. This position misstates the holding in Keeler and ignores other precedent. Specifically, the First Circuit in Keeler dismissed the employee’s substantive age discrimination claim. From there, the court reasoned that the absence of an underlying substantive discrimination claim ipso facto warranted dismissal of the failure to investigate claim. Likewise, in Verdrager v. Mintz Levin, Superior Court Judge Lauriat dismissed plaintiff’s gender and pregnancy discrimination claims. Relying on Keeler, Judge Lauriat reasoned that “[b]ecause Ms. Verdgrager has no actionable gender or pregnancy discrimination claim, she cannot prevail on a claim for failure to investigate and remedy discrimination.” On appeal, however, the SJC reversed and, in doing so, reinstated plaintiff’s failure to investigate claim.
D. Failure to Accommodate: To prevail on a failure to accommodate claim, an employee must establish that: (1) she is a qualified handicapped individual; (2) she needed a reasonable accommodation due to her handicap; (3) the employer was aware of her handicap and that she needed a reasonable accommodation; (4) the employer was also aware of a means to reasonably accommodate her handicap, or failed to investigate a means to reasonably accommodate her handicap; and (5) the employer failed to provide a reasonable accommodation.
1. Strict Liability: Under the ADA and the Fair Employment Practices Act, an employee who brings a failure to accommodate claim is not required to show that an employer acted with discriminatory intent. Rather, as the First Circuit held in Higgins v. New Balance, “an employer who knows of a disability yet fails to make reasonable accommodations violates the statute, no matter what its intent, unless it can show that the proposed accommodations would create undue hardship for its business.” Likewise, in Marcano-Rivera v. Pueblo International, the First Circuit elaborated that “any failure to provide reasonable accommodations for a disability is necessarily ‘because of a disability’ – the accommodations are only deemed reasonable (and, thus, required) if they are needed because of the disability – and no proof of a particularized discriminatory animus is exigible.”
2. No Magic Word Requirement: That an employee does not specifically request a “reasonable accommodation” in the technical sense is of no consequence. In Schmidt v. Safeway, for example, the District Court of Oregon noted that the ADA “does not require the plaintiff to speak any magic words before he is subject to its protections. The employee need not mention the ADA or even the term ‘accommodation.’” Indeed, the EEOC Enforcement Guidance on Reasonable Accommodation makes clear that simply stating to a supervisor “I’m having trouble getting to work at my scheduled starting time because of medical treatments I’m undergoing” constitutes a request for a reasonable accommodation.
3. Interactive Process: Pursuant to the MCAD Handicap Discrimination Guidelines, once an employer becomes aware that an employee requires a reasonable accommodation, the employer must initiate an informal “interactive process” with the goal of identifying the precise limitation caused by the handicap and potential reasonable accommodations that would allow the employee to overcome those limitations. In Bultemeyer v. Fort Wayne Community Schools, the Seventh Circuit noted that “[a]n employee’s request for reasonable accommodation requires a great deal of communication between the employee and employer.” The Seventh Circuit further acknowledged in EEOC v. Sears, Roebuck & Co. that “[a]n employer cannot sit behind a closed door and reject the employee’s requests for accommodation without explaining why the requests have been rejected or offering alternatives.”
4. Reassignment: Under 42 U.S.C. §12111(9)(B) and 29 C.F.R. §1630.2(o)(2)(ii), the ADA makes explicit that reassignment or transfer to a different position can be a reasonable accommodation. The EEOC Enforcement Guidance on Reasonable Accommodation are also unequivocal that “policies limiting transfers cannot be a per se bar to reassigning someone outside his/her department or facility. Furthermore, the ADA requires employers to provide reasonable accommodations, including reassignment, regardless of whether such accommodations are routinely granted to non-disabled employees.” Similarly, the MCAD Handicap Discrimination Guidelines also recognize reassignment or transfer to a vacant position as a reasonable accommodation under M.G.L. c. 151B. Notably, in Anderson v. UPS, the MCAD Full Commission upheld a hearing officer’s finding that UPS violated M.G.L. c. 151B by refusing to transfer the complainant to a different position, where the complainant had satisfactorily performed the jobs to which he requested transfer in the past. In doing so, the MCAD found the employer’s failure to accommodate constituted a constructive discharge and awarded the complainant approximately $300,000 in front pay damages; $143,000 in back pay damages; and $125,000 in emotional distress.
This punch-list highlights the technical legal points that often arise in disability discrimination claims, and the way in which legal issues can be framed to shed proper light on the particular facts of your case.
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