Dahill v. Police Department of Boston

• Decision Date: 25 May 2001
• Citation: 748 NE 2d 956,434 Mass. 233
• Parties: RICHARD DAHILL v. POLICE DEPARTMENT OF BOSTON.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

434 Mass. 233

748 NE 2d 956

RICHARD DAHILL v. POLICE DEPARTMENT OF BOSTON.

Supreme Judicial Court of Massachusetts, Suffolk.

March 5, 2001.

May 25, 2001.

Present: MARSHALL., C.J., GREANEY, IRELAND, SPINA, COWIN, SOSMAN, & CORDY, JJ.

Harold L. Lichten (Shannon Liss-Riordan with him) for the plaintiff.

William V. Hoch for the defendant.

The following submitted briefs for amici curiae:

Stanley J. Eichner, Jane Alper & Bennett H. Klein for Disability Law Center & others.

Cynthia L. Amara & Loretta M. Smith for Associated Industries of Massachusetts.

Arthur G. Telegen, Anjali Parekh Prakash, Robert A. Fisher, Sharon R. Burger & Marc A. Polk for Boston Area Management Attorneys Group.

Thomas F. Reilly, Attorney General, Catherine C. Ziehl & Louisa M. Terrell, Assistant Attorneys General, for the Attorney General.

MARSHALL, C.J.

This case is here on certification from the United States District Court for the District of Massachusetts, pursuant to S.J.C. Rule 1:03, as appearing in 382 Mass. 700 (1981). The question certified, which concerns the definition of the term "handicap" in the Massachusetts antidiscrimination statute, G. L. c. 151B, is as follows: "Whether Massachusetts General Laws c. 151B requires consideration of mitigating or corrective devices in determining whether a person has a handicap."¹

I

The relevant background is contained in the memorandum and order of the District Court judge in which he denied in part and granted in part a motion for summary judgment of the police department of Boston. See S.J.C. Rule 1:03, § 3 (2). We summarize only those facts that illuminate our resolution of the certified question.

Richard Dahill was born with a severe hearing impairment. At the age of three he began receiving medical care for his hearing loss and wearing hearing aids. He continued to receive medical care until the age of thirteen, when his hearing stabilized. Without the use of hearing aids, Dahill's hearing remains significantly impaired. With the use of hearing aids, his hearing is corrected to within normal limits. It is his use of hearing aids that raises the question we must answer.

Despite his severe hearing impairment, Dahill has achieved a wide range of academic and vocational success. His childhood medical records, which document extensive audiological evaluations and assessments, report above-average performance in school. He is a certified high school English teacher, and has worked as a lifeguard and health club worker. Dahill attended and has graduated from college and law school.

In 1996, he applied for a position as a Boston police officer. In February, 1997, he received a conditional offer of employment, subject to meeting the medical standards promulgated by the Commonwealth's human resources division. After conducting an auditory examination, the department's physician, Dr. Luther Arnold, determined that Dahill had a "Category B Condition," which does not automatically disqualify a person from employment as a police officer.² Dr. Arnold certified that Dahill met the Commonwealth's hearing requirements with the use of his hearing aids.³

Dahill subsequently entered the Boston Police Academy for a twenty-six week training program required of all new police officers. At the academy, several episodes occurred that raised concerns on the part of the department that Dahill's hearing might make him unfit to be a police officer. In one incident Dahill did not respond to an oral instruction to retrieve water bottles after a training run. On another occasion he did not respond to a radio call. He also did not hear a gunshot during a firearms training exercise. Dahill has offered explanations for these incidents, but they are not germane to the issue before us.

After receiving reports of the episodes, Dr. Arnold again evaluated Dahill's hearing, and sent Dahill to another specialist for auditory tests.⁴ On the basis of his examination, the specialist's report, and the instructors' reports of Dahill's training, Dr. Arnold sent a report to the police commissioner of Boston stating that "there remains a major question of safety" regarding Dahill's ability to perform the duties of a police officer. The department then terminated Dahill, explaining to him that his "auditory deficiencies" rendered him "incapable of effectively and safely performing the essential duties of a Police Officer."

Dahill sued, claiming that his termination violated the Massachusetts antidiscrimination statute, G. L. c. 151B, § 4; the Massachusetts equal rights statute, G. L. c. 93, § 103; the Federal Rehabilitation Act, 29 U.S.C. § 794 (2000), and the Americans with Disabilities Act (ADA), 29 U.S.C. §§ 12101 et seq (2000).

II

We are asked to decide only whether a person who brings a claim pursuant to G. L. c. 151B, § 4 (16),⁵ has a "handicap" as defined by G. L. c. 151B, § 1 (17),⁶ if the person's impairment has been or can be alleviated by the use of corrective devices or other mitigating measures.

The department urges that we be guided by the decision of the United States Supreme Court in Sutton v. United Air Lines, Inc., 527 U.S. 471 (1999), where the Court concluded that, under the ADA, "if a person is taking measures to correct for, or mitigate, a physical or mental impairment, the effects of those measures — both positive and negative — must be taken into account when judging whether that person is `substantially limited' in a major life activity and thus `disabled.'" Id. at 482. The ADA defines "disability,"⁷ in part, as: "a physical or mental impairment that substantially limits one or more of the major life activities of such individual." 42 U.S.C. § 12102 (2). Because the definition of "handicap" contained in G. L. c. 151B, § 1 (17) ("a physical or mental impairment which substantially limits one or more ... major life activities"), is essentially identical, the department suggests that the interpretation of the Federal statute by the Supreme Court compels a similar reading of the Massachusetts statute. We must first ascertain what the Massachusetts Legislature intended in 1983 when it amended our antidiscrimination statute to prohibit unlawful employment discrimination of handicapped persons, G. L. c. 151B, § 1 (17), § 4 (16), inserted by St. 1983, c. 533, §§ 2, 6, before we consider the Supreme Court's interpretation of a Federal statute enacted in 1990, seven years later. See Pub. L. 101-336, § 2, 104 Stat. 328 (1990).

The language of the Massachusetts statute is not dispositive. Cf. Acting Superintendent of Bournewood Hosp. v. Baker, 431 Mass. 101, 104 (2000). The statute draws a distinction between persons who have a physical or mental impairment, and those whose impairment "substantially limits" a "major life" activity. G. L. c. 151B, § 1 (17) (a). Only the latter are protected by the Massachusetts statute. But the statute is silent as to whether mitigating measures or corrective devices must be considered in determining whether a person with an impairment falls into the protected or nonprotected category. A person with a hearing impairment might experience no "substantial limit" of a "major life activity," even though he uses no corrective device: he would not be protected under the statute. A person with a hearing impairment might, even while using his corrective hearing aids, still suffer a "substantial limit," and thus would be protected. Finally, a person with a hearing impairment might experience a "substantial limit" of a "major life activity" when not using his hearing aids, but not experience any such "substantial limit" while the corrective devices were in use. The statute does not resolve whether this last person would be protected.

Because the language of the statute does not end our inquiry, we turn to other sources to discern the Legislature's intent. Acting Superintendent of Bournewood Hosp. v. Baker, supra at 104. The legislative history of G. L. c. 151B is instructive. In 1983, when the Legislature amended G. L. c. 151B to extend protection from unlawful employment discrimination to "handicapped" persons, St. 1983, c. 533, § 2, the Legislature explicitly patterned the definition of "handicap" on the definition of "handicap" contained in a Federal statute enacted ten years earlier, the Federal Rehabilitation Act of 1973, 29 U.S.C. § 706 (6) (2000). See Talbert Trading Co. v. Massachusetts Comm'n Against Discrimination, 37 Mass. App. Ct. 56, 60 (1994).⁸ At that time no court had determined, or, to our knowledge considered, whether "handicapped" referred to a person's impairment in its corrected or mitigated condition; corrective devices or other mitigating measures were simply not relevant. See, e.g., Strathie v. Department of Transp., 716 F.2d 227, 228-230 (3d Cir. 1983) (bus driver with controlled hearing impairment assumed to be "handicapped"); Davis v. Ohio Barge Line, Inc.; 535 F. Supp. 1324, 1325 (W.D. Pa. 1982), vacated on other grounds, 697 F.2d 549 (3d Cir. 1983) ("controlled epileptic" assumed to be handicapped). We presume that in 1983 the Legislature was aware of the then-existing case law interpreting the Federal statute, and that it must have intended the term "handicap" in the Massachusetts statute to be interpreted in a manner that was consistent with the then-existing Federal jurisprudence.⁹ See Duarte v. Healy, 405 Mass. 43, 47 (1989) (Legislature presumed to be aware of United States Supreme Court case interpreting 42 U.S.C. § 1983 when it patterned Civil Rights Act after § 1983).

Guidance provided by the Massachusetts Commission Against Discrimination (MCAD) on this issue is also illuminating. In 1998, the MCAD issued guidelines that provide that "the existence of an impairment is generally determined without regard to whether its effect can be mitigated by measures such as medication, auxiliary aids or prosthetic devices." Massachusetts Commission Against Discrimination Guidelines: Employment Discrimination on the Basis of Handicap Chapter 151B...