Disability and Discrimination: A Resource Manual

© Peter Kelley, John La Bella, and Peter Myette
A Handbook for Resolving Problems


Disability and Discrimination © John La Bella and Peter Kelley, was a joint effort of ACT UP Boston, Attorney Peter Kelley, John La Bella, and Peter Myette, the former Director of the Boston City Commission for Persons with Disabilities. Send updates and corrections for this manual to the Disability and Discrimination Manual Editor. Thanks!

Table of Contents

Part One - Things You Should Know
If You Are in Immediate Danger
Recognizing Discrimination
Has Any of the Following Things Happened to You?
Common Forms of Discrimination
What the Law Says About Discrimination
Legal Terms

Part Two - Things You May Wish To Try
Keep Records
Decide What You Want
Make a Plan of Action
Early Complaint Resolution (E.C.R.)
What Kind of Situations Benefit from E.C.R.?
Situations That May Not Benefit from E.C.R.
When Is the Time to Speak Up for What You Need?
Talk to the Right Person
Protect Yourself While You Collect Information
Write a Letter

Part Three - Sample Letters and Forms
A Sample Reasonable Accommodation Letter
A Sample Complaint Letter
A Sample Medical Release Form
Disabled Persons Protection Commission Abuse Report Form


Part One - Things You Should Know


If You Are in Immediate Danger

If you, your property or family is in physical danger, ask around your local community for recommendations for a legal advocacy agency that speaks your language or specializes in the kind of discrimination you're encountering. You can use the HomeBasics database to access information about legal and culturally sensitive community resources throughout Massachusetts.) Once you find an agency, tell the that you are in danger, have a disability and that you are afraid for your safety. Then listen to what they have to say. You may want call more than one agency, so you can choose which pieces of advice you want to follow.


Recognizing Discrimination

Discrimination against people who have a disability (or who are thought to have a disability) occurs everywhere in the U.S. If you believe you have been discriminated against (or are about to be discriminated against) you need to decide:

How can you spot discrimination? You may be saying to yourself, "something is not right here." You may feel as if people are treating you unfairly, or just differently. You may be afraid to complain about this treatment, or you may be remembering how other people have been treated when they complained in the past. You are starting to wonder if you need some legal help.

Trust your feelings! If you feel that something isn't right about the way you are being treated, that's reason enough to consider it discrimination. You need to start looking at ways to halt it.

This pamphlet is for you if:


Has Any of the Following Happened to You?
(Check any items which may describe your problem)

____I'm being harassed.
____I was denied housing.
____I was fired without cause.
____I'm afraid to ask for time off.
____They separate me from everyone else.
____I was denied services that others have gotten.
____I was denied a necessary change in my job duties.
____When I get an accommodation, I am made to feel bad.
____I've used up my sick time and my boss wants me to quit.
____They want me to take a test for AIDS, and I don't want to.
____I need a change in my workload, but I'm afraid to ask for it.
____I don't trust my boss to keep my medical information confidential.
____I need more sick time, but they give me a hard time when I ask for it.
____The internal complaint process itself is the source of more discrimination.
____Someone at work thinks I have AIDS, and now people are bothering me.
____I told my company doctor that I tested positive for HIV; now other people know.


Common Forms of Discrimination(This is not a complete list. There are types of discrimination that do not fit any of the above categories. Please keep reading.)
What the Law Says About Discrimination

We now have strong laws, both in Massachusetts and the nation, to protect persons with AIDS from illegal discrimination. (The laws are somewhat different in each state.) The law tries to halt many kinds of illegal treatment, but people don't always agree on how to enforce these laws. When you want to explain your situation, you first need to understand the different ways these laws can be interpreted, so that you can decide what your best course of action will be.

Laws are like tools: how much they help you depends on how well you use them. Sometimes, just sharing your understanding of the law with the right people at the right time can solve your problems, and save everyone time, money, and grief. Or, you may have to show people what the laws are and make them understand they have to obey them. To do this, you will need to learn a few legal terms. You will need to use them when you try to explain what you see happening, and why you think it is illegal.


Legal Terms

Action or Inaction, Harm or Injury:

These are the standard words lawyers use when talking about discrimination. They use them when they talk about the three things that prove a charge of discrimination:

You have to prove that someone, through an ACTION or INACTION, is being discriminatory. For example, you were fired, or someone refused to rent an apartment to you, or you were denied a service. (If you are afraid that something is about to happen to you, though, you will not be able to get the law on your side: the law cannot step in until the harm is done. This is called potential action);

The discrimination must have resulted in some kind of HARM or INJURY to you. (If someone dislikes you, you must understand that this is not a violation of the law unless they actually cause you some harm or injury);

Here are some examples:

  • No one will work near me anymore (inaction) so I'm being segregated (harm, injury)

  • People are harassing me (action) so I'm subjected to abuse (harm or injury)

  • I asked for an accommodation, but got no response (inaction) so I was denied an accommodation (injury)

  • If I tell my boss about my diagnosis, I don't think he will keep it confidential (potential action) so I'm afraid my privacy rights will be violated (potential injury)

    To say it one more time: you have to be able to prove that there is a connection between your HIV status and the harm done to you. It is often easy to determine ACTION/INACTION and HARM/INJURY. However, the connection between that and your HIV status may be hard to prove. For you to make a good case, you have to prove that you were hurt because someone thinks or knows you have AIDS.

    Disparate or Unequal Treatment:

    This means you're treated differently or worse than others because you have AIDS (or because people think you have AIDS, ARC, or a disability). For example, you are fired from a job and several people heard your boss say it was because you have AIDS. To prove your case of unequal treatment, the witnesses must be willing to repeat what theyhave heard.

    Most often, DISPARATE TREATMENT is deliberate, final, and hard to resolve. People won't listen to reason. You may need to go higher up in the bureaucracy to get what you want. You may need some support. You may have to file a complaint, or say you intend to file a complaint, in order to get fair and equal treatment.

    Disparate or Unequal Impact (Unfair Results or Unequal Effect):

    This means that the result of a certain policy is unfair to people who have AIDS, even if the policy attempts to treat everyone equally. An example of this: a sick leave policy that penalizes all people for taking a certain amount of earned sick time unless they have a doctor's letter stating the nature of the illness. Because medical information about AIDS and other disabilities is confidential, people do not have to tell their employer that they have AIDS: therefore, this policy could have the result of a PWA being afraid to ask for sick leave; because, if they did, they would have to reveal their medical condition.

    Most often in cases of DISPARATE IMPACT, the people hurting you may not think they are being unfair, but the result or effect of their actions is unfair to you. Disparate impact is generally not caused by vindictiveness, and can usually be resolved through discussion.

    Separate Treatment (Segregation):

    SEPARATE TREATMENT is illegal, unless it is the only way to provide the service you are seeking. An example of separate treatment would be: you go to your dentist and you tell him you have AIDS: if he then says he will only treat you after regular office hours, you are being discriminated against. Or, as an example, if your boss moves yourwork station away from other employees because he thinks or knows you have AIDS, you are being discriminated against.

    Some types of SEPARATE TREATMENT are legal and sensible: for instance, if you need to check into a hospital, you don't want to be put in a room with someone who has an infectious disease that you could catch easily. But putting you in a separate room because other people are afraid they will catch your AIDS is unnecessary, and therefore discriminatory.

    Reasonable Accommodation and Undue Hardship:

    The purpose of REASONABLE ACCOMMODATION is to change something so that you can do your job or benefit from a program or service, even if you have a disability. The accommodation must be related to your physical limitations and it must be related to the job or activity.

    The accommodation should be requested by you (see A Sample Letter to Request an Accommodation) or, it must be something you are offered and want to accept. If an employer or housing manager gives or provides an accommodation that you do not want or need, that in itself could be a form of discrimination.

    From your point of view, the accommodation must help you to overcome the limitation of your disability. From your employer's point of view, the accommodation must enable you to do your job. Failure to provide the accommodation is a violation of law, unless the other side can prove UNDUE HARDSHIP. This means the employer must be able to prove that providing the accommodation will be costly or too difficult.

    Employers may request proof of your disability before they provide you with an accommodation, but they can't legally share that information with anyone if you insist on confidentiality. They are allowed to inform those people who need to know that you will receive the accommodation, but they are not allowed to speak about your health status with anyone else, unless you give them written permission. If you decide to ask for confidentiality, it is very important that you put your request in writing and keep a copy of the request for yourself. (Go to ASample Medical Release Form)

    A side note: sometimes a reasonable accommodation means you can ask for special treatment. For example, if you have to go to a clinic where an AIDS drug study is taking place, and the clinic is only open from 9 to 5, then you must be allowed the time off from work in order to maintain both your job and your health. The law does not consider this 'special treatment' - it considers it a reasonable accommodation. Unless your employer can prove that it would be an undue hardship for him/her to grant you this (because they cannot arrange to hire replacement help, or the job cannot be done by you on 'flex time', for example) you can count on getting such an accommodation.

    Examples of Reasonable Accommodation:


    Part Two - Things You May Wish to Try

    Keep Records

    Start to keep a diary. Take the time to write down the things that have been said or done to you. Follow up meetings you have by sending a memo or a letter to everyone that reminds them of what was said at the meeting. Keep a record of everything that has been said to you, and by whom. Keep everything that has been sent to you!

    Here are a few questions to consider when you write. They may help you to organize your thoughts so you can make a convincing presentation to others.

    What is the problem?







    Who or what is the cause of the problem?







    Is the discrimination intentional? What do you think is the reasonfor the discrimination? (Is it fear, hatred, or dislike? Or is it ignorance - do they feel they are treating you fairly, but you feel they are not?)







    If you gave them information about the law, do you think it would help change their treatment of you? Yes______ No______


    Who is the person higher up who decides what will happen to you? (Write down his/her name, title, address, and phone.)








    Decide What You Want

    (Fill out this questionnaire and it may help you make decisions)

    Do you believe you have been discriminated against? (Yes or No) _________


    Using the legal terms described above, what sort of discrimination is it?

    _____________________________________________________________


    Do the people discriminating against you think they are in the right? _________


    Do you think if you gave them legal information they would change? _________


    Will they stop discriminating against you if you speak up? _________


    Will they stop if you show them their actions are illegal? _________


    Will they stop if you tell them you will go public? _________


    Is the discrimination 'final' or 'ongoing'?
    (Example: have you been denied services or been fired - (final _________


    (Example: are you being harassed or threatened - (ongoing) _________


    If the action is ongoing, when was the last time it happened?

    day___ month________________ year______
    What is the date of the last time you were discriminated against? (For example, the day you received a letter saying that you were fired, or the day they wrote you and told you your accommodation was denied)

    day___ month________________ year______
    If you did file an internal grievance or complaint, when was the last day anything happened as a result?

    day___ month________________ year______
    If you are filing a complaint with a state agency in Massachusetts, you have to do so within six months of the above date. This is how much time you are legally allowed before it is too late to file a complaint with a state agency: (This time period may be longer or shorter in other states.)

    Same day plus six months = day___ month________________ year______
    If are filing a complaint with a federal agency, you have to do so within 180 days (which is not always the same thing as six months). So use the form below to see if you are within the 180 days of the date of the incident. In some states, the time limit may extend to 300 days. This is how much time you have before it is too late to file a legal complaint in a federal agency such as the Equal Employment Opportunities Commission (EEOC):

    Same day plus six months = day___ month________________ year______
    If you are a federal employee, you have to file a complaint within 30 days of the last date of discrimination:

    Same day plus six months = day___ month________________ year______
    What have you done so far to fix things? (meetings, letters, etc.)







    What documentation do you have concerning this problem? (witnesses, letters, statements made by others, dates of meetings you've had with them, etc.)







    Who is/are the person/persons discriminating against you? (Print his/her name/job title/work phone/work address)







    What is his/her relationship to you? (boss, co-worker, etc.) _________________



    Who is the person in charge of fixing the situation? (Print his/her name, job title, work phone, work address)







    Has he the authority to make a decision everyone will have to accept? ________


    Is there a grievance committee to which you can go? ________


    Did you already try this? ________


    Do you think it would be risky to go to the grievance committee ________

    Why?







    What do you want to get out of the situation? (for instance, do you want your job back; do you feel like righting a wrong, or standing up for yourself; do you want to make certain that others don't have to go through what you went through; are you looking for back pay, or compensation for damages; are you insisting on equal treatment or services; are you hoping to gain admittance to a particular apartment or house, etc.)







    Would it be dangerous for you to speak out or complain? ________

    How do you feel about publicity?

    (I don't want any) ________
    (I can deal with it) ________

    At this very moment, what do you think your best course of action would be?







    Do you understand the laws as they apply to your situation? ________


    Can you afford a lawyer? ________


    Do you know how to get in touch with free legal advice? ________


    Did you know that you can ask a lawyer to keep your name secret? ________


    At some point you will have to tell some people what you want, or how you expect to be treated and what your needs are. This may mean you will have to come out as a gay person, or a drug user, or reveal some other personal facts that may make you uncomfortable. Do you need help to do this? ________


    What sort of help do you think you will need?







    Do you have friends you can count on if you come out as a person with HIV? ___


    Make a Plan of Action

    Depending on what is happening to you, you will have several ways to solve your problems. One option may be as simple as getting the right person to listen to you. You may have to write a letter in order to get attention. Or, you may have to file an internal grievance or file a formal complaint with a civil rights agency.

    Remember: you don't have to deal with this problem on your own. We think it's best if you get help from people who know the law and how to use it. If you can afford it, call an attorney who specializes in discrmination or disability law. You can check the appendices link at the very bottom of this document to .

    Many organizations offer legal advice for free. Some of them are listed in the appendices of this booklet. Call them to see if you qualify for free or low-cost advice.


    Early Complaint Resolution

    To decide whether you need to contact someone for legal advice, you should first understand what problems should be easy to solve, and what problems are going to be more difficult. Some problems can be solved through early complaint resolution (E.C.R). E.C.R. is a way of stopping problems before they get too serious. Here are some waysyou can use E.C.R.:

    What Kind of Situations Benefit from E.C.R.?

    Situations That May Not Benefit from E.C.R.


    When Is the Time to Speak Up for What You Need?

    If you want to change your situation, or if you want to prevent something bad from happening, you have to let somebody know what you want. You need to talk with the right person, and you want to prepare for that talk by first collecting information. You may also want to protect your privacy while you are collecting that information.


    Talk to the Right Person

    You want to make sure that you are talking to the right person, and that they understand what their legal obligations are. Sometimes just finding this person will be your most difficult task. You can begin by asking who is responsible for seeing that civil rights are upheld in your organization.

    If it is a big organization, it will most likely be an Equal Opportunity Officer ("E.O. Officer"). If your company receives any federal funding, the law requires them to have a "504 Coordinator" and a Grievance Procedure. A "504 Coordinator" is someone your company may have if it receives federal money. This person is responsible for stopping discrimination related to disability.


    Protect Yourself While You Collect Information

    There are lots of questions you can ask without having to reveal your HIV status

    If your company does not have an EO Officer, or it is a small organization, or the EO officer is not familiar with disability law, you will need to educate them about the law. When you speak with that person, be sure you let them know in writing that you expect them to obey the laws regarding your right to confidentiality. You should provide them with the information they will need to insure your rights and to protect your right to confidentiality. Most often, this should be done with the assistance of someone who knows the law. A list of organizations which can offer help is in Appendix A of this booklet.


    Write a Letter

    Write a letter stating your concerns. Address it to the person or committee who has the power to change your situation. Keep a copy of the letter, making sure you have put the date and year on the letter. If you need help writing this letter, contact one of the organizations listed in the appendices of this booklet. You can use the letters we've printed (on the following pages) as models. Remember, though: keep a copy of everything you mail!

    By writing this letter, you can achieve several things:

    Send your letter by certified mail so they can't claim they never received it. Also, be sure to save a copy of this letter for yourself! You can make your letter business-like or friendly - use whatever style you think will most likely get you the response you want.

    If you do not get an acceptable response to your letter within 20 days after you mailed it, you will need to file either an Internal or Formal Complaint. Don't wait too long to get around to this! The law sets very short time limits after which discrimination is impossible to prosecute. If you wait too long to do this, you will lose your chance to gain justice (the time limit may be as little as 180 days -- sometimes it's "three months," which could be shorter or longer than 180 days, depending on the months involved). Don't lose your right to complain by waiting too long!

    To file an Informal Complaint, you must either write a different letter, or call and make an appointment to see the person whose job it is to take such complaints. Before you try to file an informal complaint, you contact several of the help agencies listed in Appendix A, and talk with them. (Don't tell these help organizations you are also talking with other groups; many of these agencies are swamped with work so they won't take time to assist you if they think someone else is already doing so.)

    To file a Formal Complaint, you must contact one of the governmentagencies listed in the back of this book. Again, you should probably talk with someone at one of the Help Agencies before you do this.

    On the following pages are sample of letters you can use for your letter. Change our sample letter in any way you want so that you can get the most helpful response. Make sure you keep copies of all letters you send. Always mail by certified mail.

    The last page of this section is a sample of a medical consent form, if you want to protect your privacy. Finally, there is a small legal table which lists the various laws that may affect your case. This table is only a start: remember, the law is not clearly defined in all the areas mentioned.


    Part Three - Sample Letters and Forms

    Sample Reasonable Accommodation Letter
    (You'll have to change some parts of this letter if you don't live in Masachusetts.)

    Make sure you put the date here at the top of the letter

    Mr./Ms.________________
    Job Title or Position
    Company or Address
    City, State, Zip Code


    Dear______________:

    I am writing to inform you that I have a disability, and to request a reasonable accommodation in accordance with the Americans with Disabilities Act, Mass General Law Chapter 151B and the Boston Human Rights Ordinance (use this last only if you live in Boston).

    I am requesting the following accommodations (here are some examples):

    (List only the requests that legally apply in your case. You should consider talking with one of the help agencies listed in the resources database before you write this letter, so that you don't weaken your case by asking for things you cannot get.)

    If you require verification of the physical limitations for which I am requesting this accommodation, I will sign a medical release form for that purpose. If you have a particular medical release form I must use to gain this accommodation, please mail it to me within three days of the receipt of this letter.

    You may not know that Federal and State laws treat such information, including this letter, as confidential. In accordance with those laws, I expect you not to divulge the existence of this letter, or its contents, to anyone unless you have my written consent.

    I look forward to a decision within 20 days of your receipt of this letter. Thank you very much for your prompt attention.

    Very truly yours,
    Put you name here

    cc: If you send out copies of this letter, list the names of all the people who got a copy

    END of Letter


    Sample Letter to Register a Complaint
    (You'll have to change some parts of this letter if you don't live in Masachusetts.)

    Make sure you put the date here at the top of the letter
    Mr./Ms.________________
    Job Title or Position
    Company or Address
    City, State, Zip Code

    Dear Mr/Mrs/Ms________________:

    On January 30, 1992 I sent a certified letter (copy enclosed) to Mr./Mrs./Ms._____________ requesting a reasonable accommodation for my disability. To date, I have received no response. (Or you might say: their response to my letter was to harass (ignore) me/my request was denied.)

    I believe that my rights under Massachusetts General Law 151 B, the Americans with Disabilities Act, and the Boston Human Rights Ordinance are being ignored. I am filing a complain with your office in the hope that this matter can be resolved with your assistance. Enclosed is my signed consent form granting you permission to discuss my case withthe following people at: (housing authority, company, etc.) or any parties you need to contact in order to help me. Please stress to these people that they must not violate my confidentiality by discussing my situation with anyone besides yourself.

    Very truly yours,
    Put you name here

    cc: If you send out copies of this letter, list the names of all the people who got a copy

    END of Letter


    A Sample Medical Consent Letter

    This letter will help you to protect your privacyPut the date here at the top of the letter

    Mr./Ms.________________
    Job Title or Position
    Company or Address
    City, State, Zip Code


    Dear______________:

    I am writing to give you permission to talk with my doctor, in order to verify that I have a disability. My doctor's name, address, and phone number is listed below:

    ___________________________________________

    ___________________________________________

    ___________________________________________

    ___________________________________________

    ___________________________________________

    I want to stress to you that your investigations, as well as any discussions you have with my doctor, must be kept confidential. It is not only important to me that I have my privacy, but the law requires that you not discuss, interview, debate with, or reveal this matter to anyone else without my permission.

    If you need to do some further questioning, you must first get my permission in writing.

    Very truly yours,
    (Put you name here)

    cc: If you send out copies of this letter, list the names of all the people who got a copy

    END of Letter


    Disabled Persons Protection Commission

    Abuse Intake or Report Form
    (M.G.L. c. 19C Reporting Form). This form allows you to report abuse or harassment to the appropriate stae agency. You can report for your own benefit, or for someone else's.
    Disabled Persons Protection Commission Home Page50 Ross Way
    Quincy, MA 02169
    617) 727-6465
    HOTLINE: (800) 426-9009 V/TTY 7 DAYS A WEEK

    Part Four - Appendices

    These appendices are part of a large resource database. Because this database is on a secured webpage, you may not be able to access it directly. So:
    1. Click the link above
    2. On the next page, click the link: "Enter HousingWorks"
    3. Next click the link: "Search" in the grey stripe that runs across the top of the following page.
    4. Next, click the link: "Search for Housing-Related Resources"
    5. Finally, click the link: "HomeBasics" and follow the various steps to get the legal resources data for your area of Massachusetts.


      © 1994 Peter Kelley and John La Bella. All Rights Reserved.