Many federal agency managers come to the reasonable accommodation discussion armed with incorrect suppositions about the requirements of the law. They think accommodations are optional, or that if they make a good faith effort to accommodate, that is all that is required.
These myths prevent many federal employees from getting the accommodations they need. Managers delay, avoid, and refuse accommodations because of these.
Here are the five myths:
- Myth 1 – Unless the Action Involves Termination or Loss of Pay, Accommodations Aren’t Required
- Myth 2 – As Long as I am Trying to Resolve the Issue, That’s Not Discrimination
- Myth 3 – If I Provide Some Accommodation, That is All that Is Required
- Myth 4 – I only need to Accommodate the Essential Functions of the Job
- Myth 5 – I will Get to it at Some Point, and That is Sufficient
This gets management into a lot of trouble. Believing that you have to treat disabled employees the same or that this is sufficient to meet the requirements of the disability laws leads to many mistakes.
It ain’t what you don’t know that gets you into trouble. It’s what you know for sure that just ain’t so.Mark Twain
Let’s start getting rid of these myths.
Myth 1 – Unless the Action Involves Termination or Loss of Pay, Accommodations Aren’t Required
Generally, the anti-discrimination laws (Title VII, ADEA) require employees to demonstrate a change in the terms or conditions of their employment. This is typically known as an “adverse action” requirement. Perhaps around 95% of all EEO claims involve some form of “adverse action” or hostile work environment (which is a collections that amount to a change in terms and conditions).
Does this same requirement apply to reasonable accommodations? No.
In a recent 2020 case, a federal circuit court of appeals (right below the Supreme Court) had to reverse this incorrect assumption. The Court in Exby-Stolley explained that Reasonable Accommodations are unlike any other form of discrimination, and that every court to address the issue holds that there is no adverse action requirement. Failing to provide an accommodation in itself is unlawful and constitutes discrimination.
The EEOC holds the same for federal employees in the EEO process. The EEOC does not require demonstration of any “adverse action.” For example, not providing the proper place for a service animal to relieve himself in Clifford L. v. U.S. Postal Service, EEOC Case No. 0120181528 (EEOC OFO 2020). That is clearly not a change in the “terms and conditions” of employment.
Myth 2 – As Long as I am Trying to Resolve the Issue, That’s Not Discrimination
Many managers falsely believe that as long as they are not acting with “discriminatory intent” against an employee, that is all that is required. It is true that in virtually all other areas of discrimination law, the Agency justifies its actions by pointing to a lack of discriminatory intent. But that’s not the case with reasonable accommodations.
This is perhaps the most pernicious myth, because it fundamentally misunderstands the legal requirements of the ADA and seemingly justifies managers in providing less than what the law requires.
The EEOC and the federal courts have expressly rejected this myth. In Guzman v. Postmaster General, EEOC Case No. 01A51266 (2006), the EEOC stated:
[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)
The federal circuit courts have similarly found that there is no intent requirement. In Higgins v. New Balance Athletic Shoes, Inc., 194 F.3d 252 (1999), the First Circuit in Boston stated:
[A]n employer who knows of a disability yet fails to make reasonable accommodations violates the statute, no matter what its intent, unless it can show that the proposed accommodations would create undue hardship for its business.Higgins v. New Balance Athletic Shoes, Inc., 194 F.3d 252, 264 (1999).
So what does this mean for employees? It’s a frustrating reality that many managers hide behind their misapprehension that their intent matters. This justifies, for example, forcing employees to come to work even if they need 100% telework and alternative accommodations are ineffective. See my post on this issue here: 4 days per Week of Telework is Not Enough for Those Who Need 100% telework.
Myth 3 – If I Provide Some Accommodation, That is All that Is Required
To meet the requirements of the law, a federal agency employer is required to provide an “effective” accommodation. Effective typically means that the accommodation allows the employee to accomplish the essential functions of the job. The mistake many managers make is making an accommodation that is partly effective, meaning that it enables the employee to do his her job functions some of the time.
The problem is most clearly shown where employers provide some telework but require the employee to take leave for the rest of the time. As the EEOC has stated,
While an employer may choose between effective accommodation, forcing an employee to take leave when another accommodation would permit an employee to continue working is not an effective accommodation.Jody L. v. Dept. of the Air Force, EEOC Case No. 0120151351 (Jan. 17, 2018).
This comes up not infrequently. For example, in Jody L., the employee was wheelchair-bound and could not safely travel to work if the temperatures where he worked in North Dakota (which is notoriously cold in winter) dipped below -20 Fahrenheit. The Agency forced him to take leave instead of allowing him to telework. The EEOC found that this was a failure to accommodate, because he could have easily teleworked on those days.
In another case (which I mentioned above), the Agency had a very serious migraine issue, where her migraines were triggered by office lighting and heating. The Agency offered her 4 days per week of telework, but required her to come in on the fifth day for meetings, and provided her with a specially outfitted room. Because this was not effective at eliminating all of the triggers for her migraines, the Agency was found not to have provided a reasonable accommodation. Here is the text of the EEOC decision in Fernanda H. v. Kijakazi, EEOC Case No. 2020004066 (Dec. 21, 2021).
If the only accommodation possible is one that allows the employee to perform their functions some of the time, or some of the functions, then this suggests that the employee is no longer capable of performing the essential functions of his or her job and is entitled to reassignment. That is itself an accommodation. The failure of an agency to consider reassignment is a violation of the disability laws.
Myth 4 – I only need to Accommodate the Essential Functions of the Job
Even somewhat enlightened HR professionals and managers may still believe that the only issue is ensuring that the employee can perform their essential job functions. Beyond that, the employee is on his own, right? No.
Relying too heavily on the concept of ‘essential functions’ leads to two related but different problems. Both have their genesis in the idea that getting the employee to perform the tasks listed in their ‘essential functions’ provided by agency management is sufficient.
The first problem is accommodations for tasks that are not listed as essential functions, but are clearly necessary to work. For example, a commute is virtually never listed as an essential function, but it is implied for virtually all jobs that the employee will be physically present at some point (pandemics excepted). A commute is not an essential function, right?
Even if it is not, accommodating employee’s commutes is definitely a requirement according to the EEOC (who has final say for federal agencies). In Jody L. v. Dept. of the Air Force, EEOC Case No. 0120151351 (Jan. 17, 2018) (mentioned above), the employee had to either come to work or to telecommute in order to do the essential functions of the job. Failure to provide telework on days when he was not able to be physically present at work constituted a failure to accommodate.
The way agencies mess this up is by believing that all that is required is accommodations for essential functions. So agency functions like holiday parties, town hall meetings, non-mandatory training do not need to be accommodated. Wrong.
Essential functions are just one area where the employee needs to be accommodated. The other two are applying for jobs (seems obvious), but also accommodations that allow employees with disabilities “to enjoy equal benefits and privileges of employment as are enjoyed by its other similarly situated employees.” 29 C.F.R. § 1630.2(o).
What this means is that employees have to be accommodated so they have equal access to be able to do what everyone else gets the opportunity to do. In Swofford v. Dept. of Transp. (FAA), EEOC Case No. 01A21334 (2003), the Agency was found to have discriminated against an employee when it failed to make a trailer used at air shows wheelchair accessible for an employee’s volunteer activities. It was a voluntary activity, so there was no “essential function” involved.
Myth 5 – I will Get to it at Some Point, and That is Sufficient
Managers delay, delay, delay. They have been entrusted with a mission, and that mission is the priority. Everything else is secondary. They say to themselves: ‘I’ll get to it when I have the time. If I don’t deny the accommodation, there’s no problem, right?’
Wrong again. Delay can itself be a violation of the law. Even delaying a few months can constitute a denial of an accommodation. In Retha W. v. Perdue (USDA), EEOC Case No. 0120161254 (June 21, 2018), the agency delayed by three months providing telework accommodations to an employee who was otherwise forced to work in a mold-infested workplace despite her bronchitis, headaches, and coughing. The EEOC held that this three-month delay was a violation of the disability laws, even though the employee eventually was accommodated.
So no, just getting to the accommodation eventually is not sufficient. While they don’t have to be provided immediately in most cases, any delay in processing a request can cause a violation of the law and result in a finding of discrimination.
Be A Mythbuster
Now that you know these myths, you can start dispelling them in your workplace. Once these myths are no longer guiding reasonable accommodation decisions in your office, a lot of the discussion and problems simply fall away. It streamlines the process so that employees can receive the accommodations they need.
If your federal agency employer is not making reasonable accommodations based on one of these myths (or any others), find an attorney who understands how accommodations work and what the legal requirements are. If management won’t listen, you have to make them listen. Your federal career may depend on it.