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

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

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.

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.

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