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EMPLOYMENT LAW GUIDE: - page 17 / 134





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I. Disability/Handicap

State and federal disability discrimination laws (Chapter 151B and the Americans

With Disabilities Act (ADA), 42 U.S.C. § 12111, et seq.) generally preclude an employer

from discriminating against a “qualified” but “disabled” applicant or employee who can

perform the “essential functions” of the job with or without “reasonable accommodation.”

As is explained below, the terms appearing in quotation marks have very specific legal

meaning. As a result, obtaining legal counsel in this area may be particularly useful to

determine the appropriate response to individual situations.


“Disabled” Employee Defined

A “disabled” individual is a person who: (i) has a physical or mental “impairment”

that “substantially limits” one or more “major life activities”; (ii) has a “record” of such

impairment; or (iii) is “regarded” as having such an impairment. Effectively, this means that

an employee (or applicant) who has an impairment that substantially impacts day to day

activities such as caring for one’s self, performing manual tasks, walking, hearing, seeing,

speaking, breathing, learning or working may be protected by these statutes. Further,

individuals that have a “record” of such impairment (i.e., individuals who were disabled in

the past) or are regarded, incorrectly, as having such an impairment (for example, if an

employer has an erroneous belief that an employee with a heart condition can no longer

perform manual labor), may be protected as well.

In order to be protected, the individual must be “qualified” that is, the individual must

be able, with or without reasonable accommodation, to perform the essential functions of the

The term “disability” as used in the federal ADA and the term “handicap” as used in Chapter 151B are synonymous. We use the term “disability” here to refer to standards under both the federal and state statutes, which are very similar.


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