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 treat everyone the same, that’s good enough under the disability laws.

Wrong. Failure to provide an accommodation to a federal employee with disabilities is itself discrimination (absent legal excuse). The ADA (and by extension the Rehabilitation Act for for federal employees) states:

the term “discriminate against a qualified individual on the basis of disability” includes—

not making reasonable accommodations to the known physical or mental limitations of an otherwise qualified individual with a disability who is an applicant or employee, unless such covered entity can demonstrate that the accommodation would impose an undue hardship on the operation of the business of such covered entity;

42 U.S. Code § 12112 – Discrimination

The above states, in relevant part, that “discrimination” when it comes to those who have disabilities includes failing to “mak[e] reasonable accommodation” for individuals with disabilities (that is, “physical or mental limitations” who are qualified for their jobs, unless doing so would be an “undue hardship” on the employer. A “covered entity” includes, under the disability laws, federal agency employers.

Why is this important? It narrows down the questions to just a few: (1) is the person entitled to an accommodation, (2) did the employer know about the need for accommodation, (3) did the employer make an accommodation, and (4) does the employer have any legal excuse based on the cost of providing the accommodation (an undue hardship)?

Note that there is no question of intent.

The EEOC has interpreted this law to mean: “a finding of discriminatory intent is not required in order to conclude that the agency failed to provide a reasonable accommodation to a qualified individual with a disability.” Guzman v. Postmaster General, EEOC Case No. 01A51266 (2006) (citing Hughes v. United States Postal Service, EEOC Appeal Nos. 01A01512 and 01A00168 (April 20, 2000)).

Yep. Could it be any clearer?

For those wondering, an “undue hardship” is not just an inconvenience. If you want to learn more about how federal Agency employers get this wrong, see my post: Poor Excuses – Federal Agencies Do Not Understand the ‘Undue Hardship’ Defense.

EEOC Cases Show “Good Try” isn’t Good Enough

Nevertheless, Agencies regularly fail to appreciate this simple statement and advise agency management (or just fail to correct the misperception) that ‘doing a decent job is good enough.’ To use a legal term of art, it ain’t.

For Example, in Fernanda H. v. Kijakazi (SSA), EEOC Case No. 2020004066 (Dec. 21, 2021), the employee was given, frankly, a lot of reasonable accommodations. For her migraines, she was given a specially outfitted office for the one day per week that she was required to come to the office for meetings. That meant, she had 4 days per week of telework. Was that enough to avoid violating the law? No.

The EEOC held in Fernanda H. that the agency failed to accommodate the employee. She wrote a lengthy letter to management explaining her situation and why the accommodations did not work for her disability. The Agency’s assertion of “good faith” in trying to accommodate her disability played absolutely no role in whether it was found to have accommodated the employee. (The employee did not seek damages, but that’s another matter).

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