Boston Employment Lawyer Blog

Under the Americans with Disabilities Act (ADA), employees who are "substantially limited" in a "major life activity" are considered disabled and entitled to reasonable accommodations in the workplace. Handicapped employees experienced a welcome change with the ADA Amendments Act (ADAAA), which became effective on January 1, 2009.

The Americans with Disabilities Act (ADA) went into effective in 1992 and, since that time, has faced numerous criticisms. Namely, the strict standards under the ADA created scenarios in which employees were either not sufficiently disabled to state a viable claim or too disabled to be deemed qualified for the position in question.

The ADA Amendments help to minimize these concerns and, in doing so, essentially overturn certain Supreme Court precedents that made it difficult for employees to show that they suffered a substantial limitation in a major life activity. In Sutton v. U.S. Air Lines, 527 U.S. 471 (1999), for instance, the Supreme Court held that "the determination of whether an individual is disabled should be made with reference to measures that mitigate the individual’s impairment ...." The Supreme Court reiterated this principle in Murphy v. UPS, 527 U.S. 516 (1999) and Alberstons, Inc. v. Kirkinburg, 527 U.S. 555 (1999), which were both decided the same day as Sutton. Likewise, in Toyota v. Williams, 534 U.S. 184 (2002), the Supreme Court stated that a substantial limitation in a major life activity must be "interpreted strictly to create a demanding standard for qualifying as disabled ...."

The following is an overview of some of the key changes brought by the ADAAA:

1. Broadened Definition of Disability

Since the ADA was enacted, numerous federal courts found several severe medical conditions – including epilepsy, diabetes, multiple sclerosis, intellectual disabilities, major depression, and bipolar disorder – to not meet the ADA’s definition of “disability.” The purpose of the ADAAA makes explicit that its purpose is “to reinstate a broad scope of protection” by expanding the definition of “disability,” which immediately reverses more than one decade of conservative federal court decisions. The ADAAA also makes clear that a medical condition that is episodic or in remission meets the definition of disability if it would substantially limit a major life activity when active.

2. Broadened Definition of Major Life Activity

The ADA was silent as to what constituted a "major life activity." The ADAAA now provides a non-exhaustive list of examples of major life activities such as caring for oneself, performing manual tasks, seeing, hearing, eating, sleeping, walking, standing, sitting, reaching, lifting, bending, speaking, breathing, learning, reading, concentrating, thinking, communicating, interacting with others, and working. The ADAAA also makes clear that major life activities include major bodily functions related to the immune system, cell growth, as well as digestive, bowel, bladder, neurological, brain, circulatory, respiratory, endocrine, and reproductive functions. As a result, serious medical conditions such as cancer (which affects normal cell growth) and diabetes (which affects the endocrine system) should clearly be considered disabilities under the ADAAA.

3. The Effect of Mitigating Measures

Contrary to the trilogy in Sutton, Murphy, and Kirkinburg, the ADAAA requires that mitigating measures be ignored in evaluating whether an impairment substantially limits a major life activity. As such, a mitigating measure can longer be used against employees.

4. "Regarded As" Disabled Standard Revised

The ADA has always offered protection for those employees whom an employer wrongly "regarded" as being disabled. Federal courts, however, required ADA plaintiffs to demonstrate that the employer regarded them as being substantially limited in a major life activity in order to prevail. The ADAAA dispenses with the holding in Sutton:

Standing alone, the allegation that respondent has a vision requirement in place does not establish a claim that respondent regards petitioners as substantially limited in the major life activity of working. ... When the major life activity under consideration is that of working, the statutory phrase “substantially limits” requires, at a minimum, that plaintiffs allege they are unable to work in a broad class of jobs.

Contrary to Sutton, under the ADAAA, an employee satisfies the "regarded as" prong if she demonstrates discrimination based on "an actual or perceived physical or mental impairment whether or not the impairment limits or is perceived to limit a major life activity."

With these changes, federal law is catching up to the Massachusetts Fair Employment Practices Act. In 2001, for instance, the Supreme Judicial Court of Massachusetts decided Dahill v. Police Department of Boston, in which the court refused to follow the Supreme Court's reasoning in Sutton v. U.S. Air Lines and ruled that mitigating measures or corrective devices should not be considered when determining whether an employee is handicapped under M.G.L. c. 151B(1)(17).

Employees who suffer workplace discrimination in violation of the Massachusetts Fair Employment Practices Act are entitled to recover four types of damages: front pay (the amount by which someone's future earnings are reduced by discrimination), back pay (the plaintiff's lost income from the time of the discrimination up to a jury verdict), emotional distress damages, and attorney's fees. These damages are compensatory damages, designed to compensate the victim of discrimination for the actual harm s/he suffered and no more.

Punitive damages are another category of damages provided by the Fair Employment Practices Act for the victims of unlawful discrimination on the basis of race, color, religious creed, national origin, sex, sexual orientation, or handicap. However, not all victims of unlawful workplace discrimination are entitled to punitive damages. Recently, in the case of Haddad v. Walmart Stores, Inc. , the Massachusetts Supreme Judicial Court clarified the standard for the award of punitive damages.

In Haddad, a jury awarded punitive damages to the plaintiff for the gender discrimination that she had suffered. The trial judge, however, took away the punitive damages. The parties then filed cross-appeals, raising numerous questions of law.

On appeal, the plaintiff argued that the trial judge's decision to take away the punitive damages was error. Simplifying a bit here, the plaintiff went on to argue that Massachusetts law permits punitive damages for intentional acts and, since discrimination is the result of intentional acts, any finding of discrimination is sufficient to support an award of punitive damages.

The Supreme Judicial Court ("SJC") agreed with the plaintiff that the trial court's decision to take away the jury's award of punitive damages was a mistake. The SJC found that the the trial court judge may have based his decision on a belief that, in order to recover punitive damages, an employee must show that his/her employer acted with the knowledge that its actions violated applicable civil rights laws. The SJC said that, to the extent the judge's order relied upon that reasoning, it was in error.

The Supreme Judicial Court went on to clarify the circumstances under which a victim of unlawful discrimination may recover punitive damages. The SJC held that punitive damages in a discrimination case may be awarded only where the defendant's conduct is outrageous or egregious. In determining whether the defendant's conduct is outrageous or egregious, a judge or jury should consider several factors, including but not limited to:

(1) whether there was a conscious or purposeful effort to demean or diminish a class of which the plaintiff is a member (or the plaintiff because he or she is a member of a class);
(2) whether the defendant was aware that the discriminatory conduct would likely cause serious harm or recklessly disregarded the likelihood that serious harm would arise;
(3) the actual harm to the plaintiff;
(4) the defendant's conduct after learning that the initial conduct would likely cause harm; and
(5) the duration of the wrongful conduct and any concealment of that conduct by the defendant.

The Supreme Judicial Court suggested these five factors do not exhaust the list of considerations that may be relevant to an award of punitive damages in a discrimination case, but they do help clarify what an employee who is the victim of workplace discrimination should show if she hopes to recover punitive damages against her employer.

You can watch a video of the oral arguments in the Haddad case on Suffolk Law's website.

Gender discrimination just became more expensive. On January 29, 2009, President Obama signed the Lilly Ledbetter Fair Pay Act of 2009. After approximately 19 years as an employee of Goodyear Tire and Rubber Company, Lilly Ledbetter learned that she earned significantly less than her male colleagues. Not surprisingly, a jury found Goodyear liable for gender discrimination. In a controversial decision, the United States Supreme Court reversed, ruling that Ms. Ledbetter should have filed her claim within 180 days of the date that Goodyear first paid her less than her male counterparts. (For more information about the Supreme Court's decision, please visit our blog post entitled, Supreme Court Routs Title VII in 2007: Goodyear Wins Right to Discriminate Based on Gender.)

The Ledbetter Fair Pay Act of 2009 has three key features. First, the statute not only applies to gender discrimination, but also to unequal pay based on the following types of discrimination: (a) race, color, religion, and national origin under Title VII; (b) age under the Age Discrimination in Employment Act (ADEA); and (c) handicap discrimination under the Americans with Disabilities Act (ADA). Second, the statute allows employees who have suffered these types of unequal pay discrimination to recover back pay for up to two years preceding the filing of a charge with the Equal Employment Opportunity Commission. Third, the Act takes effect retroactively as if enacted on May 28, 2007.

The Fair Pay Act is a welcome change for employees who suffer pay discrimination. For more information on this issue please visit the New York Times article entitled,Obama Signs Equal Pay Legislation.

Handicap discrimination claims continue to make headlines. Patrick Brady is the latest employee to successfully file suit and prevail against Wal-Mart. Brady, who suffers from cerebral palsy, worked at Wal-Mart as a pharmacy assistant. In joining Wal-Mart, Brady brought with him two years of experience working at a local pharmacy. Despite being qualified, Brady's supervisor assumed that he was incapable of doing the job because of his cerebral palsy. Based on this unfair and unwarranted perception, Brady's supervisor stripped him of his pharmacy assistant functions and transferred him to the personnel department.

No longer a pharmacy assistant, Brady eventually resigned and filed suit against Wal-Mart for failing failing to participate in the interactive process and refusing to accommodate his disability. Amazingly, although plainly evident that Brady's cerebral palsy impaired his motor skills, Wal-Mart argued that it had no obligation to accommodate his disability. As expected, the court disagreed. Indeed, while the burden generally lies with employees to inform the employer of the need for an accommodation, the burden shifts to the employer where the disability is obvious, as in Brady's case:

[A] situation in which an employer perceives an employee to be disabled but the employee does not so perceive himself presents an even stronger case for mitigating the requirement that the employee seek accommodation. In such situations, the disability is obviously known to the employer, while the employee, because he does not consider himself to be disabled, is in no position to ask for an accommodation. A requirement that such an employee ask for accommodation would be tantamount to nullifying the statutory mandate of accommodation for one entire class of disabled (as that term is used in the ADA) employees. We therefore hold that an employer has a duty reasonably to accommodate an employee's disability if the disability is obvious-which is to say, if the employer knew or reasonably should have known that the employee was disabled.

For more information, please visit the Second Circuit's full opinion in Brady v. Wal-Mart

Handicapped employees must often overcome significant hurdles in the workplace -- both those related to their medical conditions and, unfortunately, misconceptions that commonly result. Where feasible, employers must provide reasonable accommodations to handicapped employees. Failing to do so, as Wal-Mart recently learned, violates the Americans with Disabilities Act (ADA). In Massachusetts, such infractions also trigger liability under the Fair Employment Practices statute.

In June 2008, the Equal Employment Opportunity Commission (EEOC) reached a settlement with Wal-Mart on behalf of a long-time pharmacy technician who suffered a disability, which the company failed to accommodate. Glenda D. Allen was a Wal-Mart employee since July 1993. In 1994, she was wounded during the course of a robbery at another employer causing permanent damage to her spinal cord. As a result, Ms. Allen walked with an abnormal gait, which required her to use a cane.

Despite her medical condition, Ms. Allen was able to perform the full scope of her duties and responsibilities as a pharmacy technician. Nevertheless, Wal-Mart wrongfully terminated Ms. Allen after erroneously declaring that she was incapable of functioning in her position. The EEOC settled the suit on behalf of Ms. Allen for $250,000. In discussing the victory, Ms. Allen had this to say:

After beating all the odds -- surviving my injury when not expected to survive, walking again when told that I would never walk again, and returning to work where I received excellent performance evaluations and consistent merit increases -- I was devastated to have the rug pulled out from underneath me simply because Wal-Mart could no longer accommodate my handicap needs. I am hopeful that this settlement will make Wal-Mart take a closer look at its policies and practices with respect to the employment of individuals with disabilities so that what happened to me will not happen to someone else.

To read more about the settlement, please visit the EEOC's Press Release entitled, Wal-Mart to Pay $250,000 for Disability Bias.

Workplace discrimination complaints by employees against private employers to the Equal Employment Opportunity Commission (EEOC) rose by 9% last year, signifying the largest annual increase since the early 1990s. The EEOC reported that complaints increased to 75,768 during the 2006 budget year, up from 75,428 in the previous year. Discrimination complaints based on race, retaliation, and sex were the most common. Below is an overview:

• Race discrimination complaints totaled 27,238; about 35.9% of all EEOC filings

• Sex discrimination complaints totaled 23,247; about 30.7% of all EEOC filings

• Retaliation complaints totaled 22,555; about 29.8% of all EEOC filings

• Handicap discrimination complaints totaled 15,625; about 20.6% of all EEOC filings

• Age discrimination complaints totaled 13,569; about 17.9% of all EEOC filings

• Sexual harassment complaints totaled 12,025; about 15% of all EEOC filings

• National origin discrimination complaints totaled 8,327; about 11% of all EEOC filings

• Religious discrimination complaints totaled 2,541; about 3.4% of all EEOC filings

(It is not uncommon for employees to suffer more than one type of discrimination, which is why the total exceeds 100%)

Age discrimination and handicap discrimination complaints recorded double-digit percentage increases. Complaints about discrimination based on pregnancy also rose by 14% to 5,587. In 2006, the EEOC was successful in recovering $274 million in compensation for employees reporting discrimination. The Washington Post reported on these figures in an article entitled, Job Discrimination Filings Rise in 2006

The Family and Medical Leave Act (FMLA) may undergo a shake up. The United States Department of Labor (DOL) has proposed regulatory changes to the FMLA. The changes, which are 500 pages long and have a 60 day comment period, make significant modifications to the FMLA. A sampling include:

Serious health condition: The definition of "serious health condition" would be substantially revised to require two or more treatments within a 30 day calendar period. In addition, to qualify as a chronic condition, an employee would be required to see a physician for the particular condition at least two times each a year.

Medical Certification: An employee's burden to provide medical certification would be set higher, which allows an employer to dig deeper into an employee's medical file, raising privacy concerns.

Notification: The notification period that employers are required to provide would be watered down. Under the proposed changes, employers will be given five days, versus the current requirement of two days, to provide employees with notice of FMLA eligibility.

The changes, which were initiated by President George W. Bush, are not employee friendly. Senator Hillary Clinton's campaign issued the following Press Release:

The Bush Administration is seeking to make it more difficult for employees to claim paid leave when it is available to them by requiring the employers leave policies to take precedent over the FMLA; requiring employees with chronic health conditions to obtain an annual certification that they are able to do their job or risk being transferred to a different job; allowing employers to communicate directly with medical providers, which raises privacy concerns; and much more. The proposed regulation is 500 pages long.

We will keep you posted on what the 60 day comment period yields.

An all-to-common employment law issue was raised in today's Boston Globe article entitled, Several Laws Protect Pregnant Workers Injured on the Job. The article sought to answer various questions posed by employees who, for different reasons, find themselves at a crossroad with their employer.

The question to which I refer dealt with pregnancy and medical leave:

I suffered an on the job injury when I was 32 weeks pregnant. I was ordered out of work by three different doctors. It has now been almost eight months and I continue to be out of work from injury. However, I recently found out that when and if I am cleared to return to work, I do not have a position to return to. Is this legal? And do I have any recourse as far as losing my job after maternity leave and while out on work-related injury? Is this considered discrimination?

As the article points out, this particular employee may avail herself of either the Family Medical Leave Act (FMLA) or the Massachusetts Maternity Leave Act (MMLA). Both statutes require that an employee returning from leave be restored to his or her previous or a similar position. Among other things, the position must have the same status, pay, and responsibilities.

Key differences between these two statutes exist. Under FMLA leave, employers must grant an eligible employee up to 12 workweeks of unpaid leave during any 12 month period. FMLA leave can be taken for: (1) the birth and care of the newborn child of the employee; (2) the placement with the employee of a son or daughter for adoption or foster care; (3) to care for an immediate family member (spouse, child, or parent) with a serious health condition; or (4) to take medical leave when the employee is unable to work because of a serious health condition. A few hurdles apply: the employee must have completed at least 12 months of employment, must have worked at least 1,250 hours in the preceding 12 month period, and the company must employ at least 50 workers within 75 miles. Consult the Department of Labor's FMLA Fact Sheet for more information.

In contrast, under MMLA leave, employers must grant an eligible employee only 8 workweeks of unpaid leave. MMLA leave can be taken for: (1) giving birth, (2) adopting a child under the age of 18, or (3) adopting a child under the age of 23, if the child is mentally or physically disabled. In general, the threshold to become eligible for MMLA leave is lower. First, the MMLA only requires 3 months of full-time employment or the completion of a probationary period. Second, the company must only employ 6 workers. As the Massachusetts Commission Against Discrimination's (MCAD) Guidelines point out, MMLA leave can be taken more than once in a 12 month period:

Under the MMLA, an employee may take a maternity leave each time she gives birth or adopts a child. Thus, for example, if an employee gives birth in January and adopts a second child in March, she would be entitled to two separate eight-week maternity leaves under the MMLA for a total of 16 weeks. By contrast, under the FMLA, leave is limited to a maximum of 12 weeks in a 12-month period.

Consult the MCAD's MMLA Guidelines for more information.

Continue reading "Medical Leave Eligibility and Handicap Status in the Workplace Explored" »

Last week, I received a Probable Cause finding from the Massachusetts Commission Against Discrimination (MCAD) in a case involving handicap discrimination.

The decision confirms that, where an employer requests medical documentation from an employee to verify a medical condition and make accommodations, the inquiry must be appropriately focused:

The MCAD Guidelines state than an employer may request medical documentation to determine the existence of a disability and identify effective accommodations. However, the guidelines also that the inquiry must be appropriately focused. In the instant case, the Respondent's inquiries were not appropriately focused. The Respondent allowed a line supervisor to determine that an accommodation was to be denied. The Respondent then engaged in a protracted and obtuse series of inquiries by various individuals who lacked the knowledge or authority to determine what if any accommodation was needed.

Click here for the full decision.

The MCAD Process has multiple stages. First, a Charge of Discrimination must be filed within 300 days from the date the discrimination occurred. In response to the charges, the employer submits its Position Statement. The complainant next submits his or her Rebuttal in the final stage of the pleadings. Once all pleadings are submitted, the MCAD conducts its investigation and determines whether Probable Cause for discrimination exists.

The Probable Cause finding means that the MCAD has found sufficient evidence to support a conclusion that unlawful discrimination may have occurred. The case then proceeds to a conciliation conference where efforts at resolution between the Complainant and the Respondent are attempted. If the parties are unable to resolve the dispute, the case goes to Public Hearing.