Handicap Discrimination Claims:

Pursuant to Massachusetts Laws it is unlawful for an employer to discriminate against an employee because of the handicap status of that employee.

The term “handicap” means (a) a physical or mental impairment which substantially limits one or more major life activities of a person; (b) a record of having such impairment; or (c) being regarded as having such impairment.  Depression and bipolar disorder is a mood disorder characterized by episodic fluctuations in mood, depression, decreased need for sleep and marked highs and lows. Bi-polar disorder is a handicap within the meaning of G.L. c. 151B. Gaston v. City of Springfield and Gary Cassanelli, 23 MDLR 176, 180 (2001).   As the Commission has noted in its Guidelines on Handicap Discrimination, one major life activity is the activity of "working". 8 MDLR 2003 (1989). This comports with the ADA definition as well. 29 C.F.R. s. 1630.2(i); 2 EEOC Compliance Manual s.902.  Moreover, the temporary nature of the impairment suffered by Mr. Gimmelberg is not a bar from asserting a claim under G.L. c.151B or the ADA.

The MCAD is authorized under M.G.L.  c. 151B, § 5 to order remedies upon a finding of discrimination, and these remedies can include back pay and damages for emotional distress. Franklin Publishing Co., Inc. v. MCAD, 25 Mass. App. Ct. 974 (1988).  M.G.L.  c. 151B, § 5 allows for damages that are fair and reasonable and proportionate to the distress suffered. Stonehill College v. MCAD, 441 Mass. 549, 576 (2004). Factors to be considered include: "(1) the nature and character of the alleged harm; the severity of the harm; (3) the length of time complainant has suffered and reasonably expects to suffer; and (4) whether the Complainant has attempted to mitigate the harm..." Id. at 576. Evidence in the form of expert testimony is not necessary to obtain such an award. Id. at 576.