Motion for Summary Judgment – A Quick Intro

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.

Disability Pain Must be Accommodated by Agencies

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

Forcing employees to take leave instead of teleworking is an ADA violation

Forcing an employee to take leave is not a reasonable accommodation. The ADA requires employers to make reasonable accommodations to known disabilities of its employees. A specific accommodation, such as a ramp, is not required if providing it would be an undue burden on the employer. The ADA can require a lot of employers. And … Read more

Getting Attorneys’ Fees in Federal Employee Disability Cases (ADA)

Civil rights law such as the ADA usually include a provision requiring the Agency to pay attorneys’ fees for successful claims. This means that if there is a final determination that the agency has discriminated against an employee, the employee can normally request for payment of the fees his attorney has incurred in bringing the claim.

There are many cases where employees were awarded attorneys’ fees by the EEOC after winning their claims. Here are two decisions with a discussion of the purpose of the provisions under the law.

Why is this important? In most kinds of lawsuits, each side pays for its own attorneys whether they win or lose. In the average traffic injury case, the attorney is paid a percentage of what the jury awards, and that is constitutes her fee.

Civil Rights, such as protecting individuals from discrimination, are different from other kinds of cases. In this context, there are “fee-shifting” provisions in the law. ‘Shifting’ in this context refers to ‘shifting the burden’ of paying for an attorney from the employee to the defendant employer. It is important for federal employees to understand how these provisions work before hiring an attorney to represent them.

Civil Rights Cases are Important Enough to Ensure that Federal Employees are Made Whole for the Agency’s Discrimination

We as a society have chosen to ensure that an employee can bring a discrimination claim without fearing that he will end up losing even if he wins. The point is that the employee who brings a claim cannot be “made whole” if he has to pay attorneys’ fees. That is, he cannot be put in the same situation as would have existed if there were no discrimination if he bears the cost of doing so. Forcing an employee to pay for an attorney to right the wrong of discrimination puts the burden of social justice on the person whose rights were violated.

For the individual employee, the point of bringing a claim of discrimination is to stop a wrong and make the situation right again. This means that the employee should be paid wages that he was not able to earn because of the discrimination, and should be compensated for the emotional harms that the discrimination caused. But because there are important civil rights issues at stake, the employee should not have to bear the cost of helping to end discrimination for all of us.

Attorneys’ Fees Encourage Federal Employees to Bring Claims Regardless of the Amount of Money at Stake

Another reason attorneys’ fees are important is that it makes sure that employees bring ADA and civil rights cases even if the issue does not involve a lot of money. We as a society have decided that discrimination, even in small amounts, is still bad, regardless of the dollar cost of that discrimination.

In the ADA context, many employees are discriminated against when they are not given full accommodations as required by the law. Beyond being ungenerous and demeaning, failing to provide a reasonable accommodation impacts the employee’s ability to perform his or her job efficiently. Over the years, the employee may miss out on promotional opportunities, training opportunities, and other benefits that he or she would otherwise enjoy. This is to say nothing of the indignity of an ungenerous agency refusing to provide the minimal accommodation required by the law. But at the moment that the failure to accommodate occurs, there may be next to no measurable cost to the employee.

Discrimination damages our society far beyond what each individual discriminatory act costs. Discrimination tells other people that they are not as valuable, and discourages them from investing in their work. Over time, we all pay the costs of discrimination when this kind of discouragement is pervasive. Small acts of discrimination would never get corrected, and we would all suffer the consequences, without employees being able to get justice for them.

Federal Employees Need to be Able to Afford Justice

Obviously, federal employees often need for attorneys’ fees to be paid because it’s expensive to have an attorney bring discrimination claims against the federal government. Every agency has staff attorneys who handle personnel and discrimination matters. The marginal cost of assigning government attorneys to a discrimination case is almost zero.

But an employee has to seek out someone who has experience in the federal employment field and in particular in EEO cases. This can be expensive, and many employees would have to dip into their savings to be able to afford an attorney. Providing attorneys’ fees to successful litigants ensures that Civil Rights do not become too expensive to enforce.

Federal Employees can Find Attorneys who Work on Contingency

Particularly in the ADA context, as noted before, the dollar amounts at issue may not be very large. For many federal employees, an attorney is simply unaffordable if they have to pay out of pocket. And if they have to rely on the underlying money value of lost backpay or emotional damages, attorneys could only the most egregious cases unless they worked pro bono.

The Civil Rights laws, including the ADA, change this equation. By shifting the cost to employers, the law allows attorneys to be paid for their hard work even if the employee cannot afford it up front. Contingency fee arrangements make it possible for attorneys to take on ADA cases with little or no money being paid by employees. This is particularly important where the employee has lost his or her job and has no income to be able to afford an attorney.

Finding the right Lawyer for an ADA case

Many attorneys (and even some judges) may not be aware that Civil Rights cases provide for payment of attorneys’ fees to employees. That does not mean that all lawyers take ADA cases on contingency, or that a particular ADA claim is right for a contingency arrangement. A client who needs to have a contingent fee arrangement to be able to fund the case may want to ask up front about contingency fees and whether an attorney would consider taking the case on for a contingent fee.

Effective ADA Accommodation: What are Federal Employees Entitled To?

Subway disabled sign with "Effective ADA Accommodations" over it

The Americans with Disabilities Act (ADA) requires federal agencies as employers to provide effective ADA accommodations for its employees. The law requires agencies to provide employees with accommodations that will allow the employee to perform the essential functions of the position – this is the definition of an effective ADA accommodation. However, if the employee cannot perform the essential functions even with the accommodation, the agency is not required to provide that accommodation. In that case, there would be no effective ADA accommodation for that employee.  This can mean that a federal employee who produces sub-standard work while being accommodated can be denied that accommodation in the future. Employees are required to participate in the ADA interactive process with their employer in finding an accommodation that works. The EEOC cases below illustrate how this works in practice.

An effective accommodation must allow the employee to perform the essential functions of the job

An effective ADA accommodation is one that allows the employee to perform the essential functions of the position. This requires federal agencies to provide their employees with various alternatives, such as teleworking, assistive devices, and leave, if those accommodations would allow the employee to perform the core functions of the job successfully. The EEOC has stated:

An “effective” accommodation either removes a workplace barrier, thereby providing an individual with an equal opportunity to apply for a position, to perform the essential functions of a position, or to gain equal access to a benefit or privilege of employment.  EEOC’s Enforcement Guidance on Reasonable Accommodation and Undue Hardship (revised October 17, 2002) at question 9.

An agency cannot ignore an accommodation that it does not want to provide if the accommodation is effective at enabling the employee to perform these essential functions.

In McCoy v. Department of Veterans Affairs, an education program manager in Utah was ordered to cease teleworking because the agency had determined that the overall teleworking program was not working. The employee requested a reasonable accommodation due to her multiple sclerosis (MS), which was unpredictable in its effects. This made it difficult or impossible for her to commute to work. Nevertheless, the agency failed to provide teleworking and labeled teleworking merely a ‘convenience.’ The EEOC, however, concluded that the agency failed to provide a reasonable accommodation. Teleworking was effective by allowing the employee to avoid commuting and continuing to work at home. The agency’s priority, bringing all teleworking employees back to work at the facility regardless of the reason, conflicted with the requirements of the ADA. An ADA accommodation that does not rise to the level of meeting the employee’s need is not effective. McCoy v. Department of Veterans Affairs, EEOC Appeal No. 01A20346 (May 12, 2003).

Employees who need an accommodation to work in the federal government are entitled to an accommodation that meets their needs and enables them to work. The ADA does not allow the agency to deny an employee an accommodation because it wants to apply a blanket policy to all its employees. When there is a conflict between an agency’s priorities and the employee’s need for an accommodation, the agency’s priority must give way to the accommodation.

“Effective” accommodation means that the employee is enabled to perform his job functions

A federal agency is not required to provide a reasonable accommodation where the employee is un able to perform his job at a satisfactory level. If the employee is failing to come to work on time or has attendance issues, the agency can view a request that could exacerbate these tendencies as ineffective if it impacts the employee’s work. In such a case, there is no effective ADA accommodation that allows the employee to

In Petition No. 0320150024, a patent attorney with OCD requested a reasonable accommodation of working at home via telework. Several managers testified, however, that the employee previously had issues with time and attendance while teleworking. The EEOC concluded that because the employee had prior difficulties that showed that he was unable to meet the basic functions of the job, the telework accommodation was not effective. The employee was not entitled to this accommodation. Petitioner v. Deborah Lee James, EEOC Petition No. 0320150024 (May 19, 2015).

Federal employees are entitled to a reasonable accommodation that will enable them to perform the essential functions of their position. If the employee would not be able to perform those functions with the accommodation, it is not effective. Agencies are not required to provide ineffective accommodations.

Performing the essential functions is a requirement even with an accommodation

The ADA does not require an agency to accommodate an employee if there is no possible “effective” accommodation—that is, where the employee cannot perform the essential functions of the job. In Charlie Love v. Donohoe, the employee was a janitor with the U.S. Postal Service. The employee requested  permanent light duty and requested that other positions in his locale be found. Based on the evidence, however, the EEOC found that the employee was unable to perform the essential functions of his position because of the restrictions caused by his disability. Therefore, the EEOC concluded that the employee was not entitled to an ADA reasonable accommodation. Charlie Love v. Donohoe, EEOC Case No. Appeal No. 0120093794 (Dec. 9, 2011).

Employees who are seeking an accommodation need to be aware that if they cannot perform the essential functions of the job, there is no effective ADA accommodation. This is the reverse of what “effective” means—an accommodation that permits the employee to perform the essential functions of the job. In such a case, like in Charlie Love, the employee is not entitled to any ADA accommodations because there is no effective ADA accommodation.

The agency can choose among effective accommodations, not necessarily  the employee’s favored accommodation

An employee is entitled to an “effective” accommodation, but if there is more than one effective accommodation, the agency may choose which to provide. The Agency ultimately has the final say in what effective accommodation is provided:

It is the [EEOC’s] position that if more than one accommodation is effective, “the preference of the individual with a disability should be given primary consideration; however, the employer providing the accommodation has the ultimate discretion to choose between effective accommodations.” 29 C.F.R. § 1630.9

In Schulz v. Potter, a custodian suffered from sinusitis and allergies because of workplace dust. He requested that the agency provide a mechanical-filtered respirator. However, the agency only provided a dust mask. The EEOC concluded that the dust-mask was at least minimally effective, and therefore the custodian was not entitled to the accommodation of his choice. Schulz v. Potter, EEOC Appeal No. 0120073186 (Jan. 15, 2008).

In Glenda Wearre v. Panetta, an accounting technician requested to be moved away from certain smells and smokers in her workplace. The agency moved the employee once. When that location did not work, the agency offered numerous other locations. The employee rejected all of these, but never explained why they were not effective. The EEOC concluded that the employee was not entitled to the accommodation of her choice, so long as the accommodations offered were effective. The employee had rejected the accommodations without explanation. Hence, she could not demonstrate that the offered accommodation was not effective. Therefore, she was not entitled to further accommodation. Glenda Wearre v. Panetta, Appeal No. 0120100926 (Jan. 5, 2012).

Finding an effective accommodation can be a process, and managers often do not understand this

Employees are entitled to be accommodated. This often means in practice that an employee may have to try out different accommodations to find one that works, or the employee may have to explain why the accommodations offered by the Agency do not work for that employee.

Federal employers often do not understand these requirements. Supervisors rely on advice from Labor-Management Relations Specialists who may not be aware of all of the circumstances of an individual’s case. Managers can often ignore unseen but very real disabling issues for employees. The EEOC case law features many cases where supervisors ignored employees’ requests for reasonable accommodation because they thought all employees had to be treated the same. Knowing the right approach is critical to complying with the ADA.

Teleworking up to 100% of Work Time can be Required for Federal Employees under the ADA

Teleworking from home

Recently the federal government has sought to limit telework for federal employees. However, the ADA still requires agencies to provide telework, even 100% telework, to disabled employees who need it. Many Managers often wrongly assume that working from home is not really working. Managers often use spurious excuses to prevent employees from using telework. The Americans with Disabilities Act (ADA) requires federal agencies to offer disabled employees telework if they need it. Two recent cases show that federal agencies who try to prevent disabled workers from teleworking face serious sanctions for failing to provide reasonable accommodations.

100% Telework can be required under the ADA

In 2015, the EEOC required the Department of Housing and Urban Development to compensate an employee who requested telework because of his Ankylosing Spondylitis. This condition made it painful for the employee to drive long distances to and from work. He therefore requested to work 100% telework. HUD argued that the functions of the position required the employee to be on the road to check in on troubled housing locations and to come into the office for meetings with colleagues. The EEOC rejected these arguments, noting that the evidence contradicted that these were serious concerns justifying denying telework. Mail could be scanned and emailed to the employee and meetings could be attended effectively by phone. Therefore, the agency violated the ADA by not providing 100% telework. See Lavern B. v. Castro, EEOC Appeal No. 0720130029 (Feb. 12, 2015).

Telework can be combined with a lateral move to meet ADA requirements

In another recent case, the EEOC required the Department of the Interior to compensate an employee because it had not considered a teleworking accommodation in conjunction with offering him a different position. The employee in this case had a similar disability preventing him from driving long distances. Before litigation, the agency offered the employee two potential alternative worksites. Because driving to these worksites would violate his medical restrictions, the employee declined the moves. The agency then terminated the employee. The EEOC found that if the agency had continued to work with the employee to find an accommodation, as it was required to do, the agency could have offered the employee the two positions and telework 100% of the time. This would have accommodated his needs and met the agency’s obligations. The EEOC stated:

In allowing an employee to telework[,] an employer “may need to reassign some minor job duties or marginal functions . . . if they cannot be performed outside of the workplace.” . . . [A]n employer should not, however, deny a request to telework as a reasonable accommodation solely because a job involves some contact and coordination with other employees. [] Frequently, meetings can be conducted effectively by telephone and information can be exchanged through e-mail. Harvey G. v. Jewell, EEOC Appeal No. 0120150844 (Feb. 4, 2016).

Federal agencies should be model employers in providing accommodations, including telework

The EEOC has reminded agencies that federal agencies are not just any employer—they are to serve as models for the rest of the American workforce. Telework is becoming a reality for many federal agencies, despite recent attempts to limit federal employees from working from home. Many federal agencies assume, often without evidence, that working from home is not really working. But even if the agencies severely limit teleworking, the ADA still requires agencies to provide teleworking as an accommodation for disabled employees.

If you feel that you have been denied a reasonable accommodation or have otherwise been discriminated against, contact a lawyer  experienced in handling EEO matters for federal employees. You have a limited time to contact and EEO counselor.

3 Keys to the ADA’s Interactive Process

The ADA's Interactive Process, Getting to YES

Frequently, a federal employee will request a reasonable accommodation, and may even specify the accommodation he wants. The federal agency will respond by offering an accommodation that the employee may not desire. The employee then does not accept the offered reasonable accommodation from the agency. The employee does not continue the negotiations and instead files with the EEO office.

What to know about the ADA’s interactive process

If you find yourself in situations similar to this, there are three things that you should be aware of before going through the EEO office’s process.

  • The agency is required to go through an interactive process with you. At the core of any request for a reasonable accommodation under the ADA is the interactive process between the employee in the employer. Both sides are responsible for interacting with each other to find a reasonable accommodation. That means that if one side or the other does not participate in trying to find a reasonable accommodation, that side can be blamed for failing to find an accommodation. That can subject a federal agency employer to liability under the ADA. For an employee, that can mean that even if no reasonable accommodation is provided, the EEOC will not fault the agency for failing to provide an accommodation.
  • The Agency does not have to give you your preferred accommodation. This may sound counterintuitive at first, but the agency can offer you a different accommodation than the one you were hoping for. However, if that accommodation does not allow you to perform your job, as an accommodation should, then the agency is responsible for trying alternatives and must at least consider your proposal. Part of the interactive process under the ADA is for the employee and the agency to work together to see if an accommodation actually works, and if not to figure out what alternatives there might be.
  • An accommodation must be possible. ADA accommodations are only required if there is some accommodation that would help the employee to be able to do his or her job. If no accommodation is feasible, then the ADA does not fault the employer for failing to provide an accommodation. This is because the ADA did not specifically make it unlawful to fail to participate in the interactive process – it is only unlawful if the process would have resulted in reasonable accommodation.

Federal agencies must provide qualified employees with accommodations

The ADA requires employers to provide reasonable accommodations for disabled employees. However, if the employee cannot perform the essential functions of his or her job with any accommodation, the ADA does not require the employer to make an accommodation.

When it comes to accommodations, having a lawyer may be more important than having a doctor on your side. Doctors frequently do not understand the legal requirements of the ADA. A doctor may state that an employee is totally disabled and unable to perform the essential functions of his or her job under any conditions, believing that this will help the employee. However, when a doctor makes this kind of statement, it actually excuses the employer from providing any kind of reasonable accommodation because the employee is admitting that under no circumstances can he or she perform the job. Such an admission can be grounds for legal termination even under the ADA.

Employees need to be very careful when making requests for accommodations because it may imply that without an accommodation they cannot do the essential functions of their job. The ADA does not require employers to continue to employ employees who cannot perform the essential functions of their job even with an accommodation.

If you believe that you’re facing an issue with ADA accommodations at the federal agency where you work, you should seek out the advice of an attorney to avoid costly mistakes. In attorney can also help you develop the doctors record that you need in order to be able to qualify for reasonable accommodations at the agency.

Federal Employee Free Phone Consultation

Find a time to talk about your case with a lawyer, not an intake coordinator. 

Here’s what you should know:

  • This is completely free, no cost, no obligation on your part (Lawyers can’t expect payment without an agreement)
  • You get helpful information about your federal EEO case 
  • This is the start of the process to find an attorney to represent you