CUSHNER & BLOOM, P.C.

BROOKLINE, MA  02446

Tel. (617) 608-0019

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MORE ON DISCRIMINATION AGAINST THE DISABLED:

Attorney Steve Bloom offers representation of persons who are discriminated against on account of a physical, mental or emotional disability.  The following is a brief overview of some of the Massachusetts law involved in an employment discrimination case .  Of course, space does not allow a full discussion of this complex area of law.  At Cushner & Bloom, we want our clients to understand the law behind their cases.

                                                                Massachusetts Law.
Massachusetts law provides that "it shall be an unlawful practice... [f]or any employer... to dismiss from employment or refuse to ... rehire... or otherwise discriminate against, because of his handicap, any person alleging to be a qualified handicapped person, capable of performing the essential functions of the position involved with reasonable accommodation, unless the employer can demonstrate that the accommodation... would impose an undue hardship to the employer's business."

                                                               Proving the Case.
Generally, one way to prove a case of handicap discrimination in employment under Massachusetts law,  is for the employee to persuade the fact finder that the employee:

(1) is a "handicapped person";
(2) is otherwise "capable of performing the essential functions of the
     position"; and
(3) is being excluded from the position, or the adverse employment action
     is being taken, on account of the handicap.

A "handicapped person" is "any person who has a physical or mental impairment which substantially limits one or more of such person's major life activities, has a record of such impairment, or is regarded as having such impairment."  A "major life activity" generally includes, but is not limited to, such functions as working.  A person may be considered "handicapped" under the law even if she has no physical impairment, but the employer regards him as having an impairment. A "qualified handicapped person" is a handicapped person who can perform the essential functions of a job or can perform the essential functions of a job with reasonable accommodation to his handicap.

                                                                 Shifting Burdens.
Generally, once a Complainant (the person bringing the complaint) establishes a prima facie case of discrimination, the burden of production shifts to the employer to articulate a legitimate nondiscriminatory reason for its action. The employer must produce credible evidence showing a legitimate rationale for terminating or taking the adverse employment action against the employee. The employer's alleged nondiscriminatory reason for the employee's discharge, or the adverse employment action, must be the "real reason" for the decision to discharge the employee.

    In the area of handicap discrimination the Massachusetts Commission Against Discrimination has adopted the  "mixed-motive" approach. The Complainant must first prove that he was an otherwise qualified handicapped person apart from his handicap and suffered an adverse employment action under circumstances that give rise to the inference that the adverse employment action was based solely on her handicap.  The burden then shifts to the employer to show either that the Complainant was not an otherwise qualified handicapped person or that the adverse employment action was for reasons other than his handicap.  Finally, the Complainant must then present rebuttal evidence that the employer's reasons for the adverse employment action are based upon misconceptions or unfounded factual conclusions and that the reasons articulated for termination encompass an unjustified consideration of the handicap itself.