The Law @ Work

MCAD Requires Employer to Ask Displaced, Disabled Employee Whether He Can Do Job Before Reassigning Him

Warning to Massachusetts employers:  If you’re considering giving a disabled employee a new position when his position is eliminated, before doing so, you must initiate an interactive dialogue before assigning him to the position, says the Massachusetts Commission Against Discrimination in a decision issued earlier this month.

Guy Doble worked for EMS or its predecessor (Texas Instruments) for almost 35 years.  In 2004, Doble, who had been required to work 12-hour shifts, was allowed to work 8-hour shifts due to scheduling reasons; however, Doble also claimed that the 12-hour shift had caused him “throbbing leg pain” and that the move to the 8-hour shift lessened that pain.  In 2005, EMS reorganized and, as a result, Doble’s position was eliminated.  EMS never considered Doble for layoff and wanted him to remain employed.  It therefore decided to reassign him to another job he had held previously without first checking with him to see if he could perform the job’s functions, with or without a reasonable accommodation.   This other job required Doble to work 12-hour shifts.  Unfortunately, Doble claimed to be physically incapable of performing the duties of the position and resigned on the very day the reorganization and reduction-in-force was announced and successfully sued EMS for handicap discrimination/failure to accommodate.

EMS seemed to have some good points in support of its position that it did not discriminate against or unreasonably fail to accommodate Doble.  First, EMS did not appear to have much knowledge about Doble’s physical condition, nevermind his alleged disability.  Although Doble had spoken about his physical limitations with a nurse who provided on-site services for EMS, the nurse did not share any of the information about Doble with EMS.  Doble only mentioned having pain and arthritis during casual conversations with his supervisor.  Further, the MCAD concluded that it didn’t matter that EMS witnesses testified that they were unaware of Doble’s impairments.  According to the Full Commission, that was a “problem of its own making,” stating that EMS should have gotten that information from its predecessor company.  “Should have known” about his disability was the standard applied.

Second, EMS could have terminated Doble when his position was eliminated, but, instead, it chose to reassign him (which to many would suggest it did not harbor discriminatory animus.)  That decision, according to the MCAD, triggered all sorts of obligations on the part of EMS that it would not have otherwise had.  Under Massachusetts law, an employer is not required to transfer an employee to an alternate position as a reasonable accommodation.   However, if it is considering doing so and the employer should know the employee is disabled, the employer must initiate the interactive process.  In this case the employer didn’t do so, and the MCAD therefore held that EMS failed to accommodate Doble in violation of Massachusetts’ anti-discrimination laws.

On the day that the reassignment and RIF was announced, the employee told the supervisor and HR that he could not do the new job and asked for re-assignment.  At that time, there were no other positions available; he was informed of that; and he quit that same day.  The MCAD found that Doble “had no choice” but to resign under the circumstances and that EMS therefore constructively discharged him because of his disability.  As a result, the MCAD awarded Doble $5,812 in backpay, $50,000 in emotional distress, and approximately $35,000 in costs and attorneys’ fees.  MCAD & Doble v. Engineered Materials Solutions, Docket No. 05-BEM-01948.

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