The road to unlawful disability discrimination is paved with “good intentions.” Many federal agency lawyers (and therefore everyone else listening to them) mistakenly believe that discrimination requires in every case proof of discriminatory intent. That means if management denies any discriminatory intent, there is no discrimination (absent other evidence). That also means that if you … Read more
Most federal agencies have difficulty dealing with reasonable accommodations because, well, they just don’t understand it. Many managers, HR, and EEO personnel are familiar with the concept of discrimination—at least insofar as they can avoid a charge of discrimination by having (and documenting) a “legitimate, non-discriminatory reason” for their actions. But this does not apply … Read more
I speak with many federal employees whose management has recently added “essential functions” to their job descriptions solely to avoid providing reasonable accommodations. This can amount to discrimination if the Agency denies a reasonable accommodation because of a “fake” essential function. Frequently these arise in telework situations. I call them fake here because they don’t … Read more
Too often federal employees call me with issues about getting what are otherwise very reasonable disability accommodations from their supervisors. The problem is that federal agency managers are normally trained to treat all employees the same. That works for many situations, but not for reasonable accommodations. Under the ADA, treating everyone the same can actually … Read more
Many employers, particularly federal law enforcement, have medical standards that they use to disqualify potential employees. An employer generally may disqualify an employee if either it believes he cannot perform the essential functions of the job, or he would pose a “direct threat.” But federal agency employers often go well beyond this. Frequently federal employers employ various tests that prevent the hiring of people with minor health issues. Unfortunately, this means that persons are told they cannot work for relatively minor health issues. Well, that’s discrimination. And too many federal agencies stand by and let it happen.
A motion for summary judgment, or a “motion for decision without a hearing,” and how to respond, is probably the most important event in any litigation. It is where one side presents all of the facts that it can to convince the judge that no hearing or trial is required. For federal employees who are pursuing their EEO claims, this can be confusing. It is not like other motions. It is centrally important to how the EEO process functions.
The EEOC has held on numerous occasions that telework, even 100% telework, is a reasonable accommodation. Forcing an employee to take leave is not a reasonable accommodation unless there is no other effective accommodation such as teleworking.
Reasonable accommodations are the way that persons with disabilities are able to enjoy the same rights to work as any other individual. They are the bridge between what the person with a disability can do and what they could do on equal footing with all other persons. The accommodation levels the playing field so that … Read more
A frequently overlooked aspect of disability accommodations is pain. Many federal employees who have requested reasonable accommodation experience moderate or severe pain even after accommodation. Pain can be a significant issue in obtaining the right accommodation. Pain is also invisible. Many individuals have no way of describing the pain they are experiencing adequately. Many employees … Read more
There are at least two circumstances when an employee is almost certainly not going to be able to get telework as a reasonable accommodation. Needing a security clearance or being required to handle mail and visitors means that full-time telework is likely to be an ‘undue burden.’