Discrimination on the basis of disability : federal and Massachusetts laws : a handbook

120 Pages·1992·7.7 MB·English

by  Disability Law Center of Massachusetts

4
Discrimination
on the Basis
of Disability:
Federal and Massachusetts Laws
A Handbook prepared by
The Disability Law Center of Massachusetts
and published by
The N. Neal Pike Institute on Law and Disability
Law
iston University School of
December 1992

The Law
Disability Center, Inc.
TheDisabilityLawCenterofMassachusetts,Inc.isanorganizationthatprotectsandadvocatesfortherightsofMassachusetts
residents with disabilities. The Law Center is aprivate, non-profit corporation, independent ofany service provider. The
Law Center has the ability to pursue legal and administrative remedies on behalfofits clients.
The Law Centerseeks toprovide topersons with disabilities and their advocates information, technical assistance, and
legalrepresentation to help overcome discrimination on the basis of disability. Inquiries orrequests forassistance may be
addressed to the Disability Law Center, Inc. atany ofits three offices:
Boston office:
11 Beacon Street
Stuite 925
MA
Boston, 02108
[phone] (Voice or TDD) *
Southeastern Massachusetts office:
21 South Sixth Street
MA
New Bedford, 02740
[phone] (Voice or TDD)
Western Massachusetts office:
22 Green Street
MA
Northampton, 01060
[phone] (Voice)
[phone] (TDD)
TheLawCenterisMassachusetts'protectionandadvocacysystemforpersonswithdevelopmentaldisabilitiesandreceives
federal funding pursuant to 42 U.S.C. 6012.
The N. Neal Pike Institute on Law and Disability
The N. Neal Pike Institute onLawandDisability, Boston University School ofLaw, was established in 1983 to support the
study,research,anddevelopmentofdisabilitylaw. TheInstituteadvancesthisgoalthroughteaching,conferences,advocacy,
and publications such as this. The Institute's research files are open, by appointment, for research in disability law. Please
address inquiries to:
Pike Institute
Boston University School ofLaw
765 Commonwealth Avenue
MA
Boston, 02215
[phone] (Voice or TDD)
Acknowledgments
Many personscontributedto therevisionand publication ofthis handbook. We wish to thank especially JMB Publications.
Reproduction Rights
This handbook may be reproduced or copied in whole or in part as long as appropriate credit is given
to the Disability Law Center Inc. and the Pike Institute, Boston University School of Law.
Additional Copies
Additional copies of this handbook are available from the Disability Law Center, Inc.
Audio Tapes
This handbook has been transcribed on audio tapes for persons with visual disabilities. Please
contact the Disability Law Center for further information on availability.
This handbook has been prepared and published by the Disability Law Center and the Pike Institute
without endorsement or approval of the contents by any federal or state agency.
«
Table of Contents
Foreword
.Xll
Overview
I. 1
A. Introduction
1
NEW FEDERAL LAWS
1. 1
STATE LAW PROTECTION AGAINSTDISCRIMINATION
2. 1
B. How to Use this Handbook' 4
WHAT LAWS PROTECT ME? 4
1.
2. TO ENFORCE MY RIGHTS WHAT MUST I DO? 4
3. LEGAL PROCESS AND TERMS 4
a. What is the Law? 4
(1) Statutes 4
Regulations 4
(2)
(3) Executive Orders 5
(4) Constitutions 5
(5) CaseLaw 5
b. WhatHappens ifMore than OneLawApplies? 5
c. How is theLawEnforced? 5
C
Key Concepts in Disability Discrimination Law 6
1. QUALIFIED HANDICAPPED PERSON 6
a. HandicappedPerson 6
b. Qualified 7
REASONABLE ACCOMMODATION
2. 7
D. Enforcement 7
E. The Importance of Reasonably Accommodating
Clients with Disabilities 8
in
.
Programs and Activities Financed or Conducted
II.
by the Government 9
A. Federally Funded or Conducted Programs and Activities 9
1. INTRODUCTION TO SECTION 504 AND THE
REHABILITATION ACT 9
a. Section 501 9
b. Section 502 9
c. Section 503 9
d. Section 505 9
2. PROGRAM ACCESS REQUIREMENTS UNDER SECTION 504 10
ENFORCEMENT
3. 11
a. Interned GrievanceProcedures 11
b Complaints Filed with FederalAgencies 11
c. JudicialEnforcement 12
B. ADA: Programs and Activities Conducted by State or
Local Government 12
ENFORCEMENT
1. 12
C
Massachusetts Constitutional Amendment 1 14 13
ENFORCEMENT
1. 13
III. Architectural Accessibility 15
A. Government Buildings and Buildings Constructed with
Public Funds 15
1. SECTION 502: PUBLIC BUILDINGS CONSTRUCTED, ALTERED,
OR LEASED WITH FEDERAL FUNDS
15
a. Enforcement 15
2. SECTION 504: FACILITIES CONSTRUCTED OR ALTERED BY
ENTITIES RECEIVING FEDERAL FINANCIAL ASSISTANCE 15
3. ADA: FACILITIES CONSTRUCTED OR ALTERED BY STATE OR
LOCAL GOVERNMENT
15
a. Enforcement 15
B. Privately-Owned Public Buildings 16
IV
THE ADA
1. 16
a. Enforcement 16
THE MASSACHUSETTS ARCHITECTURAL ACCESS LAW
2. 17
a. Enforcement 17
IV. Public Accommodations 19
A. The ADA 19
WHAT APUBLIC ACCOMMODATION?
1. IS 19
EXEMPTIONS FROM PROTECTION
2. 19
OBLIGATIONS OF LANDLORDS AND TENANTS
3. 19
4. SPECIFIC PROHIBITIONS 20
a. UnequalorSegregatedServicesorFacilities 20
b. Discriminatory Standardsor Criteria 20
c. Discrimination Basedon Association withIndividual with a Disability 20
d. AuxiliaryAids and Services 20
e. ArchitecturalAccess 20
5. EXAMINATIONS AND COURSES 21
ENFORCEMENT
6. 21
B. Massachusetts Public Accommodations Law 21
1. PLACES OF PUBLIC ACCOMMODATION 21
REASONABLE ACCOMMODATION
2. 21
ENFORCEMENT
3. 22
C
Amendment 114 22
V. Transportation
25
A. Introduction 25
504
B. Section 25
C
State Laws 25
D. The ADA 25
FTXED ROUTE SYSTEMS: BUSES, RAPID TRANSIT, TROLLEYS 25
1.
2. PARATRANSIT 26
3. DEMAND-RESPONSIVE SYSTEMS 26
4. STATIONS AND FACILITIES 26
a. Newly Constructed andAlteredFacilities 26
b. KeyStations 26
5. PROGRAM ACCESSIBILITY 26
6. COMMUTER RAIL AND INTERCITY TRAINS 26
a. Vehicles 26
b. Stations 27
ENFORCEMENT
7. 27
8. PRIVATELY OPERATED PUBLIC TRANSPORTATION ~ 27
a. GeneralProhibitions 27
b. New Vehicles 27
(1) In General 27
Over-the-RoadBuses 28
(2)
c. Transportation Stations, Terminals, Etc. 28
d. Enforcement 28
E. Airline Accessibility 28
1. NON-DISCRIMINATIONREQUIREMENTS 28
ENFORCEMENT
2. 28
VI. Employment 31
A. An Overview of Sections 501, 503, and 504 of the
Rehabilitation Act 31
B. General Discussion of the Laws 31
1. EMPLOYERS COVERED BY THE STATUTES 31
2. PERSONS PROTECTED BY THE STATUTES 32
a. Who isHandicapped/Disabled? 32
(1) Physical and Mental Impairments 32
(a) Severity and Duration ofImpairments 32
(b) Alcohol and Drug Abuse 32
(c) Direct Threat to Health and Safety 33
(d) Communicable Diseases 33
ADA
(e) Miscellaneous Exclusions in the 33
(2) MajorLife Activity 33
VI
(3) Has a Recordofor is Regarded as Having an Impairment 34
b. Who isa QualifiedHandicappedPerson? 34
Reasonable Accommodation 34
(1)
(2) The Factors Used to Determine What is an Undue Hardship 35
(3) Reasonable Accommodation underthe CaseLaw 35
(4) Disclosing Your Disability to getReasonable Accommodation 35
(5) An Employer's Obligation Not to Reveal a Person's Disability 36
C
Discrimination Prohibited 36
.
1. DISCRIMINATORY JOB QUALIFICATIONS 37
a. Employment Tests that Tend to Screen Out People With Diasabilities 37
2. PRE-EMPLOYMENT INQUIRIES 37
MEDICAL EXAMINATIONS
3. 37
D. Technical Aspects of Proving Discriminations 38
DISPARATE TREATMENT 38
1.
a. Burden ofProof 38
b. BonaFide Occupational Qualification 39
c. Risk ofInjury to Selfor Others 39
2. DISPARATE IMPACT 40
a. EstablishingDisparate Impact 40
3. SURMOUNTABLE BARRIER DISCRIMINATION 40
E. Enforcement 40
1. CHAPTER 15IB 40
a. Filing a complaint with MCAD 40
b. Content ofthe Complaint 41
c. MCAD's Investigation 41
d. Conciliation Agreement 41
e. Hearing 41
/. Enforcement in Court 42
g. Appeals 42
h. Choice ofForums 42
i. Time Limitsfor Filing Complaints 42
2. SECTION 501 42
vn
a. Initiating the Complaint 43
b. Contents ofthe Complaint 43
c. DeadlineforFiling 43
d. Resolution of the Complaint 43
Appeal 43
e.
/. JudicialEnforcement 43
3. SECTION 503 43
a. Initiating the Complaint 43
b. DeadlineforFiling 43
c. InternalReview 44
d. Resolution of the Complaint 44
e. Judicial Enforcement 44
4. SECTION 504 44
ADA
5. 44
F. Damages 44
BACKPAY
1. 45
FRONT PAY
2. 45
COMPENSATORY DAMAGES
3. 45
4. PUNITIVE DAMAGES 45
5. ATTORNEY'S FEES 45
G. Constitutional Amendment 114: Employment Discrimination
by any Public or Private Organization 45
H. The Equal Rights Law 45
J. Executive Order 246: Discrimination by State Agencies
and Contractors 46
VII. Housing 53
A. General Prohibitions Against Discrimination 53
PRACTICES THAT HAVE THE EFFECT OFEXCLUDING A
1.
PERSON BECAUSE OF HANDICAP 53
B. Housing Covered Under Federal and State Statutes 54
1. EXEMPTIONS FROM COVERAGE 54
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