explaining, in discussing the Rehabilitation Act, that “[b]ecause of the similarity between the Federal and State statutes, the Federal cases are most helpful in the resolution of cases involving M.G.L. c. 151B, which prohibits employment discrimination against qualified handicapped persons”
How later courts described this case
- explaining, in discussing the Rehabilitation Act, that “[b]ecause of the similarity between the Federal and State statutes, the Federal cases are most helpful in the resolution of cases involving M.G.L. c. 151B, which prohibits employment discrimination against qualified handicapped persons”
- affirming the decision of a Superior Court judge who found even though a function rarely occurred it “is not unforeseeable that this skill would be necessary during an emergency, or even from time to time” and therefore the function was essential
- noting that courts look to the treatment of handicap discrimination under the Rehab Act since “there is no reason to construe the Commonwealth’s law differently” than its federal counterpart
- affirming that even though a function “‘may rarely occur . . . [i]t is not unforeseeable that this skill would be necessary during an emergency, or even from time to time’”
Written by the judges who cited it.
The opinion
Liacos, C.J.
(dissenting, with whom Abrams, J., joins). As the court notes, ante at 382-384, both for purposes of G. L. c. 15IB and § 504 of the Federal Rehabilitation Act, a qualified handicapped person is one who can perform the essential functions of the job in question, with or without reasonable accommodation. The court, however, never defines what constitutes an essential function, and does little more in reviewing the trial judge’s determination that gaff climbing is an essential function of an SST position than announce its agreement with the trial judge. The judge held that gaff climbing is an essential function of the SST job because “[i]t is not unforeseeable that this skill would be necessary during an emergency, or even from time to time in Boston and its suburbs.” Ante at 387. The court takes a view today of G. L. c. 15IB that is, in my opinion, overly restrictive and out of line with the intent of both c. 15IB and § 504. Because I believe that the judge committed clear error in his determination that gaff climbing is an essential function of an SST position, I dissent.
While the court acknowledges that the “plaintiff challenges the judge’s conclusion [that gaff climbing is an essential function of an SST position] as based on clearly erroneous findings and misapplication of the legal ‘essential function’ standard,” ante at 387, its review focuses only on the plaintiff’s challenge to factual questions, and concludes that the judge obviously credited the defense witnesses’ testimony more than the testimony of the plaintiff’s witnesses. Even if one accepts the judge’s factual findings regarding the frequency and importance of gaff climbing, which, for the sake of argument, I do, the legal conclusion that gaff climbing constitutes an essential function of an SST position is in error.
*392 The court offers no standard for evaluating a function to determine whether it is essential. The judge appears to have applied a standard that, although not stated, would sound something like this: If a function that is not regularly a part of the job in question foreseeably might be required in an emergency or is presently required in areas of New England where the plaintiff, absent an emergency, would never be called upon to work, then that function is essential. I cannot accept such a strained interpretation of the word “essential.”
By defining a qualified handicapped person as one who can perform the essential functions of a job with or without reasonable accommodation, G. L. c. 15IB (and § 504) necessarily contemplates that some job functions are not essential. See Hall v. United States Postal Serv., 857 F.2d 1073, 1079-1080 (6th Cir. 1988). Although I believe that common sense tells us what “essential” means, I note that the guidelines furnished by the Massachusetts Commission Against Discrimination on c. 15IB state that “ ‘essential functions’ of a job are those activities which must necessarily be performed by an employee to accomplish the principal object(s) of the job.” Guidelines: Employment Discrimination on the Basis of Handicap — Chapter 15IB, 8 Mass. Discrimination L. Rep. 2004, 2008 (1986). Therefore, the question becomes, did the judge, in making his “individualized inquiry,” see School Bd. of Nassau County v. Arline, 480 U.S. 273, 287 (1987), properly conclude that gaff climbing necessarily must be performed to accomplish the principal objects of an SST position? The judge’s own factual findings, accepted verbatim by this court, answer this question in the negative: “Though pole climbing by means of gaffs may rarely occur in the Dedham-Dorchester area [where the plaintiff would work], this skill is necessary if an SST employee is to accomplish his job when called to serve rural areas where the unstepped poles are common. It is not unforeseeable that this skill would be necessary during an emergency, or even from time to time in Boston and its suburbs.” Ante at 386-387. I agree with the plaintiff that such speculation about a hypothetical need for gaff climbing cannot support a holding that this activity is *393 “essential.” An employer may not make a function essential merely by claiming that it is. See Pandazides v. Virginia Bd. of Educ., 946 F.2d 345 , 349 (4th Cir. 1991).
The court notes today that this case presents us with our first opportunity to construe and apply the Commonwealth’s employment discrimination statute in a case involving discrimination on account of handicap. Ante at 382. I deeply regret that the court has treated this as an opportunity to constrict the protections that the statute provides by accepting such a narrow definition of “essential function.” The position the court takes today undercuts severely the clearly expressed intent of the Legislature to give protection to the qualified handicapped person “from deprivations based on prejudice, stereotypes, or unfounded fear,” School Bd. of Nassau County v. Arline, supra at 287 . I dissent.