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Accommodation of a disability

Just because a disabled employee can do his or her job without a reasonable accommodation does not allow the employer to refuse to discuss or adopt a requested accommodation.

Whether it is “possible” for a disabled employee to engage in his or her duties without an accommodation is immaterial, where he or she does not enjoy the same terms and conditions of employment as co-workers.  The Massachusetts Supreme Judicial Court has held that when a qualified handicapped individual’s disability permits him or her to perform the essential functions of a job without accommodation but prevents him from enjoying equal terms, conditions, and benefits of employment, the failure to provide a reasonable accommodation constitutes discrimination.  In Ocean Spray, Inc. v. MCAD, 441 Mass. 632, 648 (2004), the SJC rejected the employer’s contention that the fact that the plaintiff in that case had been performing his job without accommodation conclusively demonstrated that he needed no accommodation.  

Another example of why the employer cannot use this excuse to refuse an employee’s request for a reasonable accommodation occurs when an employee performs her duties more slowly and with difficulty, while in pain and at risk of injury.  Her co-w0rkers without a disability performed their jobs with more ease and without pain and risk of injury.  Therefore, the employer’s failure to provide her an accommodation prevented her from enjoying the equal terms, conditions and benefits of employment.  The employer’s conduct constitutes disability discrimination.

Pamela A. Smith
Law Office of Pamela A. Smith
233 Needham Street, Suite 540
Newton, MA 02464
617-969-2900

pam@pamsmithlaw.com

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