Failing to Accommodate Disabilities is Discrimination

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

Five Myths that Federal Managers Believe about Reasonable Accommodations

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 … Read more

Poor Excuses – Federal Agencies Do Not Understand the ‘Undue Hardship’ Defense

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

Fake Essential Functions

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

How Management (illegally) Fudges Essential Functions to Avoid Accommodations

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

Delays in Reasonable Accommodations

Many federal employees have difficulty obtaining reasonable accommodations from their federal employers because of unnecessary delays. Because the issue is in management’s hands, employees face particular difficulties getting even simple accommodations approved. But avoiding unnecessary delays can be critical to providing accommodations and avoiding charges of unlawful discrimination. Management often ignores issues One common problem … Read more

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

Don’t Accept the Agency’s Reason for Not Hiring You

A lot of people learn that they didn’t pass the physical or some other medical examination when after receiving a conditional offer for a federal job. That’s actually a red flag that disability discrimination might be at work. The Nathan case – the FBI rejects an applicant because of monocular vision. Take the case of … Read more

Paternalism & Disability

Good intentions can be weaponized by a lack of empathy and understanding.  

A lot of what constitutes disability discrimination could be see, in some light, as as simply looking out for people and caring. Keeping an employee with a back injury from using a machine that hurt him. Preventing an employee with pregnancy complications from lifting heavy boxes. This is paternalism.

The idea that we know better. But we don’t. Every time we make a decision that diminishes another person’s options because we think it’s too hard or too dangerous, we rob that person of opportunity. If we do it because we think that person has limitations due to a physical or mental condition, that’s frankly illegal discrimination.

You don’t have to be disabled to be treated like you are.

It doesn’t matter if the person is actually disabled. When people consider someone to be disabled, and we stop the person from doing work, that is a form of disability imposed on the individual by us, by our expectations, by our ignorance and hubris, and our lack of empathy.

This isn’t simply academic to the many people who are on the business end of the subtle discrimination of lowered expectations. Good intentions are weaponized by our lack of understanding and empathy.

Federal laws make it illegal for federal agencies not to hire individuals because of a paternalistic view of what that person is capable of. A couple of cases highlight how this works.

EEOC cases focus on what a person can do, not what the agency assumes.

In the recent case, Johana S. v. Department of Agriculture, EEOC Appeal No. 0120131804 (2016), the federal agency prevented one of its criminal investigators who had a severe back injury from working out in the field. Because she was not permitted to do part of her job, the agency lowered her performance evaluation. The EEOC found that this constituted illegal discrimination against the employee.

Even though the back injury itself did not qualify as a “disability” per se under the law, the anti-discrimination laws extend to protect those who are “regarded as” being disabled. This happens when employers believe and act as if the person had a physical or mental impairment that was substantially limiting. The Supreme Court has stated:

Such an impairment might not diminish a person’s physical or mental capabilities, but could nevertheless substantially limit that person’s ability to work as a result of the negative reactions of others to the impairment. School Board of Nassau County v. Arline, 480 U.S. 273 (1987).

It is the reaction of the agency, not the capabilities of the person, that are limiting.

Agencies have to show a high probability of substantial harm before refusing to hire someone.

In an older case, the agency treated an applicant as if he could not work at all for the postal service, despite that the agency’s own doctor examined him and found that he was “normal in every respect” and had “no current physical limitations or restrictions.” Daniel McManaway v. United States Postal Service, EEOC Appeal No. 01993233 (2002). The EEOC found that this was also unlawful discrimination.

The EEOC rejected USPS’s argument that there was a possibility of injury to the applicant, and that was sufficient reason not to hire him. The EEOC instead found that unless an applicant has a “high probability of substantial harm” to himself or others (sometimes known as a ‘direct threat’), the agency is just relying on bare speculation about a future that is unlikely to occur. Part of the reason for the ADA and other anti-discrimination laws is to prevent employers from refusing to hire people because of their assumptions about what a person is capable of.

Paternalism is, unfortunately, alive and well. But every time we take action and do something about it, we shine light on a small corner of darkness.

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