Transgender Discrimination on Agency Premises is a No-no

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By Deborah Hopkins

I taught a webinar a few weeks ago and covered a case that created quite a bit of conversation, and even some debate. Deryn Sumner wrote about this particular case in the FELTG newsletter a few months ago, but since not everyone had a chance to read that article – or perhaps they read it and still have questions or concerns – I want to revisit it from a slightly different perspective.

Here’s the situation:

A transgender female employee was denied a chance to make a presentation during a Bible study meeting held by an employee-run religious organization that met within a federal agency. The organization was created and recognized under the agency’s Employee Organization Policy, which meant that it was sponsored by a senior executive, met on agency premises, used agency resources (such as email and newsletters), and even received compensation from the agency to travel to events.

The employee was denied the chance to make her presentation, even after she offered to present as a man during the meeting. When asked why the request was denied the organization’s president, also an agency employee, said she did not want to promote a “transgender lifestyle” among the Bible study members because that went against the beliefs of the group.

Many folks on the webinar saw logic in this thought; others did not. Hang with me here.

The transgender female employee filed a discrimination complaint and the agency initially dismissed it for failure to state a claim, asserting that it was the organization’s president acting in that role, and not the agency, that refused to allow the employee to make her presentation.

On appeal, EEOC reversed the dismissal and remanded the case back to the agency after finding that the employee stated a viable claim for hostile work environment harassment.

Why the remand, you might ask? EEOC said that the president’s use of the term “transgender lifestyle” could “reasonably be perceived as offensive, as it is indicating that transgender people somehow are different from others and have a different lifestyle than others, and as a result, they should be treated differently.” EEOC also said that not allowing someone to dress conducive to the gender with which they identify, is “humiliating and dehumanizing” and that refusing to allow a transgender employee to make a presentation “causes further alienation” among coworkers, and interferes with her work environment.  Finally, EEOC said that if the agency failed to take immediate and appropriate action to stop the harassment, the agency could be found liable for the harassment.

So here’s where the discussion came in: a number of participants asked how the EEOC could (or whether it should) get so involved in a voluntary, employee-run organization’s free exercise of religion. How could the EEOC supersede the group members’ decisions to determine who was allowed to make a presentation during a meeting – especially when the person who requested to make the presentation had a lifestyle that did not match the core beliefs of the group?

Some asked whether this perhaps stated a claim of religious discrimination and whether the organization might have standing to file a complaint. EEOC addressed this potential claim, and said that it is a violation of the law to subject one employee to a discriminatory hostile work environment in order to accommodate another employee’s religious beliefs.

Still with me here? Because the organization was created and recognized by the agency’s Employee Organization Policy and used agency resources, the laws that apply to the agency at large (here, we’re talking about civil rights laws) apply to this employee-run organization as well. The agency had the duty to investigate and promptly correct any discrimination or harassment that came from the organization’s members, who were the complainant’s coworkers, because their conduct was reasonably related to the complainant’s work within the agency.

Were it not for this connection with the agency, there would probably not be potential agency liability here. For example, if the group was made up of agency employees but was entirely independent, unaffiliated with the agency, did not use any agency resources, and met after work hours off agency premises, the complainant might not be able to show that her exclusion was reasonably related to her day job.

A word of caution moving forward: the same analysis would apply to similar organizations that attempted to discriminate against others because of other protected classes: race, color, national origin, religion, sex, age, disability, genetic information. Whether you agree or disagree with this reasoning, this remains true: you just can’t do it; Hillier v. IRS, EEOC Appeal No. 0120150248 (April 21, 2016). Hopkins@FELTG.com

Playing Favorites in Selections and Promotions: Not EEO, But Still a Bad Idea

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By Deborah Hopkins

I love it when I teach a webinar and after it’s over, participants email questions as follow-up. Here’s one that I got after last week’s webinar on The Latest Developments in LGBTQ+ Discrimination: What Agencies and Employees Need to Know:

Dear Attorney Hopkins:

Can you speak on the discrimination implications for a selecting official who chooses someone for a job based on a personal dating relationship – can applicants who did not get selected validly claim that this is sex discrimination (e.g. you have to be heterosexual, or you have to be a female)?

And here’s the FELTG answer:

Thanks for the question. I hope this helps:

The EEOC’s stance is generally that isolated incidents of sexual favoritism (for example, a selecting official choosing someone for a position because of a dating or sexual relationship) have an adverse impact on both males and females, so they are not considered sex/gender discrimination under Title VII. In addition to EEOC, the courts have widely rejected claims that isolated incidents of sexual favoritism based on consensual romantic relationships create a hostile environment for others in the workplace. See Miller v. Aluminum Co. of America, 679 F. Supp. 495, aff’d mem., 856 F.2d 184 (3rd Cir. 1988). If the relationship and romantic behavior is voluntary, the “hostile behavior that does not bespeak an unlawful motive cannot support a hostile work environment claim.” Id. at 502.

In cases where coercion is used, though, we enter in to sexual harassment territory either as a tangible employment action (formerly quid pro quo) or a hostile work environment analysis. See EEOC’s Guidelines on Sexual Harassment, Section 1604.11(l), which state that when submission to unwelcome sexual conduct is made “either explicitly or implicitly” a term or condition of an individual’s employment, a violation will be found.

Back to your question. Take a look at Paul v. GSA, EEOC No. 01992256 (EEOC OFO 2001), where the EEOC rejected a male complainant’s claim that he was subjected to sexual harassment when a female employee was awarded a position because she had a romantic relationship with a senior agency official, who was a male. This was one isolated incident of preferential treatment without coercion, and while EEOC acknowledged it was unfair, the incident did not create a hostile work environment for either male or female employees.

Another case on point is Roy v. USPS, EEOC No. 01A50021 (EEOC OFO 2004), where a complainant alleged sex discrimination after she was denied a promotion, and she claimed that the selectee’s sexual relationship with the selecting official was the reason for her promotion. In this case, EEOC also said it might be unfair but it’s not EEO, because there was no evidence indicating sexual coercion or a pattern of sexual favors in the workplace.

One word of caution, though: an agency with a common practice of granting favorable treatment based on dating relationships might create a hostile work environment. (See EEOC’s Policy Guidance on Employer Liability under Title VII for Sexual Favoritism,  https://www.eeoc.gov/policy/docs/sexualfavor.html). If sexual favoritism is widespread in a workplace, the fact that one case was voluntary and consensual would not defeat a claim that it created a hostile work environment for other people in the workplace. Miller v. Aluminum Co. of America, 679 F. Supp. At 502. This analysis is determined on a case-by-case basis.

So maybe, if it happens once, there’s no EEO problem. But aside from EEO, we have another issue. If “choosing” the romantic partner is for a promotion or a selection, then doing so based on a personal relationship (whether it’s sex-based or not) is a non-merit factor, and this constitutes a prohibited personnel practice under 5 USC 2302(b)(6). (http://www.mspb.gov/ppp/ppp.htm). So, while there may not be EEO trouble there might be OSC trouble – and believe me, unless you’re a sadist you do NOT want trouble with OSC. But, anyone who observes this type of non-merit personal relationship favoritism can report it to the US Office of Special Counsel at www.osc.gov. The OSC then would be responsible to decide whether to investigate this type of claim and taking appropriate action.

If you’re interested in this topic and you weren’t able to attend, check out a related webinar FELTG is hosting on July 20 called New Developments under Title VII: Sexual Orientation and Gender Stereotyping. Register here: https://feltg-updates.stage1.estlandhosting.com/event/webinar-series-eeo-counselor-and-investigator-refresher-training/?instance_id=164.  Hopkins@FELTG.com

Do I Have to Grant an Employee with a Disability Her Accommodation of Choice?

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By Deborah Hopkins

Last week, I was teaching a day on The Federal Supervisor’s Role in EEO to a group of GS-14 and 15 supervisors at an agency in Atlanta. One of the topics that generated a lot of discussion – and about which there was some confusion – was reasonable accommodation for disabilities. Specifically, there were questions about what “reasonable” means, and whether the employee is entitled to the accommodation of her choice.

Now, just to make sure we’re all on the same page, let’s have a quick review. Federal employees (and applicants) are entitled to participation in the reasonable accommodation interactive process in two areas: physical or mental disability (under the Rehabilitation Act/ADA), and religion (under Title VII). Agencies must accommodate (1) the disabilities of qualified employees, and (2) the bona fide religious beliefs and practices of employees – unless doing so would create an undue hardship on the agency.

We won’t get into the process of determining who is a qualified individual with a disability here today, so let’s assume we have an employee who is qualified because she has a medical condition that causes severe back pain, and she needs an accommodation in order to perform the essential functions of her job.

A reasonable accommodation is a logical adjustment to the job and/or the work environment that enables a qualified person with a disability to perform the essential functions of the position without doing harm to herself or others. This does not mean the employee gets the best possible accommodation. Some options for accommodation might be:

  • Accessible facilities
  • Flexible starting or ending times, or brief break periods
  • Telework
  • Reassignment
  • Special software
  • Equipment or devices
  • Furniture and office layout modifications
  • Service animals
  • Hearing interpreters
  • Modifying job duties, without changing the essential job functions

In looking at what accommodations you might be able to provide and determining whether there’s an undue hardship in providing the accommodation, you’ll also want to take into consideration the overall size of your agency’s program, the type of facilities, the size of your budget, the composition and structure of the workforce, and the nature of the accommodation. 29 CFR 1630.2 (p). Agencies beware, though – money is usually not a defensible reason to deny a reasonable accommodation, especially when another accommodation is not available.

Back to our hypothetical employee. The back pain she is experiencing means that she can’t sit for more than 10 minutes at a time, and she has provided acceptable medical documentation that says as much. She generally takes a bus to work and the ride is about 20 minutes, but occasionally she will drive her car and that takes about 15 minutes. She has requested full-time telework in order to accommodate her disability. Do you have to give her full-time telework?

No, you don’t. You might do that, and maybe it’s a good idea, but remember you don’t have to. You’d want to consider things like:

  • Whether the essential functions of the job can be performed at home. If she works on computer systems or with sensitive information that aren’t accessible off-site, telework won’t allow her to perform the essential functions of her job.
  • Whether she requires management oversight in order to meet her minimum performance rating. If the employee has demonstrated that she can’t complete her work unsupervised, you don’t have to give her telework because she asked for it. See Yeargins v. HUD, EEOC No. 0320100021 (EEOC OFO 2010).
  • Whether another accommodation would allow her to perform the essential functions of her job, at the agency. Things like ergonomic chairs, standing desks, frequent breaks to allow her to walk around the building to stretch her back, and other options might be better accommodations than the full-time telework she’s requested.

The bottom line here is that and employee does not get to unilaterally dictate to the agency that she be granted the accommodation she prefers. That’s why the process is called the interactive process; it suggests agencies and employees work together informally to find an acceptable outcome. 29 CFR 1630.2(o)(3). For more on this check out a recent case, Complainant v. Department of Veterans Affairs, EEOC No. 0120122961, (EEOC OFO 2015), in which the complainant requested a number of specific accommodations, and the agency provided alternative accommodations and prevailed in the EEO complaint. Hopkins@FELTG.com

Don’t Come to Mediation if You’re not Willing to Budge

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By Deborah Hopkins

Mediation is an interesting thing. Most disputes resolve without litigation, but for some reason we don’t seem to talk as much about that as we do about the cases that get to hearing or the courts. Obviously, the cases that go to litigation also provide us with our case law so we would be remiss if we didn’t spend a lot of time and energy teaching that stuff.

But, we want to make sure we spend some time talking about other methods of dispute resolution. I recently attended mediation for a private sector employment dispute. While a few of the details were different than what a federal sector employment law dispute would cover, the general formula is the same.

The mediator was a former circuit court judge in Virginia, and he has been an attorney for 49 years. Can you imagine that? What a long time to be an attorney! In his opening script he stated that he believes the objective of finding a “mutually agreeable resolution” is a misstatement, and that the better way to look at things would be to aim for a “mutually disagreeable resolution” since neither party was going to get exactly what it wanted. He also explained that his success rate was a whopping 97%. Little did the parties (or at least, one of the parties) know that this mediation would fall into the remaining 3%.

Why did the mediation fail, you might ask? Well, it’s because one of the parties arrived that morning completely unwilling to budge from its position. The outcome: after seven hours, the only people who benefited were the attorneys (who got paid) and the mediator (who got paid). Neither side was anywhere closer to a resolution because one party refused to consider anything less than what he wanted from the beginning. He was so stuck on his position (being “right’) that the mediation proved to be a complete waste of time. [Editor’s Note: Some agencies exacerbate this problem by mandating that line supervisors are required to participate in the mediation of discrimination complaints. As Deb well points out, it is a waste of everybody’s time and money when one side or the other has no intention to compromise. Mediation should be voluntary on the part of all parties. If it is not, then it is not going to work.]

There are two primary types of negotiation: position-based and interest-based. Let’s a take a quick look at each:

Position-Based Negotiation (PBN)

This type of negotiation focuses on the stances taken on each side of the dispute. Each party takes a position, and then spends its time arguing from that position. Throughout the process, each side makes concessions until an agreement is finally reached. Benefits to taking this approach include clarity of standpoint, strong anchoring during stressful negotiations, and clear, defined roles of the parties.

But, there are some major downsides to classic PBN:

  • Any final agreement may not be very wise; it may instead be a product of the interactions of the negotiators rather than the logic of the arguments pro and con whatever is being negotiated.
  • The more the parties argue position, the more they become committed to the position, thus impacting flexibility and open-mindedness to alternative resolutions. (The more attention is paid to position, the less attention is paid to underlying concerns. This = bad news.)
  • PBN can be inefficient. Because they know they’ll likely end up meeting somewhere in the middle after making a series of small concessions, parties in these cases are tempted to start off with extreme positions.
  • It strains relationships. Often involving a contest of wills, in PBN one side generally wins, which means the other side loses. Being nice is not a good answer to this problem, because then the goal switches from reaching a wise agreement to just reaching any agreement. Plus, it’s rare that both sides act nicely, so the nice people generally get taken advantage of in these scenarios.

Position-based negotiation has its place, for sure, but is not always the best approach.

Interest-Based Negotiation (IBN or IBB)

This type of negotiation approach is drastically different because the parties separate the people and relationships involved from the problems that are in contention. Rather than present a position on why they should prevail, the parties instead discuss their interests and what is important to them. IBN is based on assumptions of mutual gain and is designed to generate high-quality solutions while enhancing relationships. Sound like a pipe dream? Well, believe it or not, it sometimes works.

Interest-based negotiators provide a variety of resolution options before the parties decide what to do, and generally set timelines to promote efficiency. Strengths in the IBN process include greater confidence and self-esteem, more control, and influence over strategic decisions.

IBN is not perfect, though. Sometimes the partnership process can be slow. Other times, IBN’s use is limited to softball issues and not major points of dispute. For example, parties have encountered problems dealing with contentious issues – such as the types of issues normally handled through adversarial bargaining – and management and the union sometimes have divergent views of how negotiations should work. When considering this approach, then, it makes sense to think about the issues to be addressed, the parties concerned, and their relationships.

One of the primary requirements for a successful mediation is for each party to come with an open mind. If either party is uncooperative, then it’s a waste of time for everyone – not to mention expensive. Productive negotiations during mediation have a few similarities:

  • They result in a wise agreement
  • They are efficient
  • They do not damage the relationship between the parties (and in some cases, they improve it)
  • They focus on the future, not the past

The mediation I attended was derailed by one party that would not abandon its position. A learning experience, to be sure. I’ll likely attend the upcoming trial, so stay tuned for my observations on that! Hopkins@FELTG.com

If the Agency Settles, Does that Mean the Employee Wins?

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By Deborah Hopkins

Settlement makes up a major part of federal employment law practice. In fact, most disputes in our field settle – whether they initiate as grievances, EEO complaints or as appeals of agency disciplinary action – before they ever get to hearing.

Settlement happens. A lot. Yet somehow, this is a topic that doesn’t get a lot of love in the training world. Many of us think we know how to settle, but few of us are actually ever trained in the skills required to negotiate settlement agreements. Settlement Skills is certainly not a mandatory class in law school, and no agency or union that we know of requires its reps to complete training in settlement negotiations or ADR.

There are several considerations to make when determining whether your case is one that’s prime for a settlement offer.

First, both sides have to be willing to settle. If you approach the employee (or, for employee reps, if you approach the agency) and they are not willing to discuss settlement, you’re probably done right there. You can always ask again, and as most of you know, the AJs at MSPB and EEOC are going to ask about the possibility of settlement at just about every phase of the process, but if one side says no, you can’t force settlement on them.

Second, you should consider the conditions that will be included in the settlement agreement. Will there be an admission of fault or liability? Is an apology required? Will there be a reference clause or a confidentiality clause? No two settlements are exactly alike, and some fairly creative arrangements might be upheld. One of my favorite settlement stories occurred in David Hasselhoff’s 2008 divorce settlement: he got to keep total possession of the nickname “Hoff” and the catchphrase “Don’t Hassle the Hoff.”

Third, there must be valid consideration. For those of you who didn’t go to law school (or for those of you who remain scarred from Contracts), consideration is a bargained-for exchange and in the context of settlement it means that each party has to do something to its detriment as part of the agreement – something that it isn’t already obligated to do. Valid consideration might be something like the reassignment of a supervisor, or allowing an employee to swap work shifts. An agency offering to treat a complainant with “dignity and respect,” and “not to retaliate,” however, is not valid consideration; the EEOC said the agency was already supposed to be doing that for all employees. Dubois v. Social Security Administration, EEOC Request No. 05950808 (1997).

Fourth (and last for today), the agreement must be enforceable. The agreement must be signed by someone with the authority to make the decisions held therein, and the agency and employee must have the ability to comply with the terms. Included in the enforceability requirement is a “meeting of the minds” where all parties involved know what they’re agreeing to. Without that, the settlement agreement is not valid.

Just last week I was talking with an agency representative who is a former prosecutor, and she said, “Settlement just doesn’t feel right. It’s like saying the employee did nothing wrong and the agency is at fault.” That’s a common misconception, but it’s not actually grounded in truth; settlement has no direct tie to liability or admissions of wrongdoing. Even if it goes against your gut to consider settlement, keep in mind it’s not just about “guilt and innocence.” Plus, even when an agency wins an appeal, it’s going to cost the agency. A successful defense averages about $100,000 at MSPB. We’re not sure how much is costs for an agency to win at EEOC, but a number of those complaints are unresolved for years, so we know it’s not cheap.

As a result of interest in this topic, we at FELTG are creating a brand new open enrollment program on Settlement, Mediation, ADR and other ways to resolve disputes without litigation. The program will be held in Washington, DC October 31 – November 4, and we’ll have details for you, including an official program name, very soon. Hopkins@FELTG.com

MSPB Attorney-Whistleblower Officially Wins IRA Appeal

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By Deborah Hopkins

You may have been following the articles I’ve been writing since late 2014 about the Korb case, which detailed the journey of a 25-year employee at MSPB who filed an Individual Right of Action (IRA) appeal alleging whistleblower reprisal. It presented a unique situation because the MSPB is the agency which, according to its website, is the guardian of merit principles, yet with Korb it reprised against him in direct violation of one of those principles.

Well, big news a few days ago: the initial decision has arrived. Korb v. MSPB, MB-1221-14-0002-W-1 (March 2, 2016). In the first paragraph of decision, the judge writes, “[T]he Appellant made a protected disclosure and engaged in protected activity. While these were not the sole factors in the Agency’s decision to take personnel actions against him, they were nevertheless contributing factors and the Agency did not prove by clear and convincing evidence that it would have taken the same personnel action in the absence of any protected activity or disclosure.”

Before we get into the facts of a case, let’s do a quick review of the whistleblower process for federal employees under the Whistleblower Protection Act (WPA).

FIRST: Agency employee “blows the whistle” and makes a disclosure about a violation he sees. If the violation fits in to one of these four categories below, it is considered a protected disclosure and the agency may not retaliate against the employee for blowing the whistle.

    1. Violation of law, rule, or regulation
    2. Gross mismanagement or gross waste of funds
    3. Substantial and specific danger to public health or safety
    4. Abuse of authority
  • A protected disclosure is generally made to a supervisor, the OIG, law enforcement, the Office of Special Counsel, Congress or the media. (Note: a disclosure to a co-worker is not protected under the WPA.)
  • In general, employees of certain agencies – most within the intelligence community – do not have whistleblower protections.

NEXT: If the agency takes an adverse action or a performance-based action against the employee, it must prove by clear and convincing evidence that it would have taken the same action even absent the whistleblowing. This standard of proof is high and is intended to protect whistleblowers from retaliation by the agency.

Now that we have a crash course on whistleblower reprisal (covered in detail during the Friday of MSPB Law Week, next held in San Francisco June 13-17), let’s do a quick review of what exactly Korb, a GS-14 Attorney-Advisor at MSPB, did:

  • Made a protected disclosure when he submitted a document containing evidence of significant delays in the processing of MSPB appeals. There was no valid reason for the delays and MSPB had no internal tracking system to ensure the appeals were moved in a timely manner. Korb independently gathered information to track the cases that had been sitting in the office, and provided the information to his supervisors in the Office of Appeals Counsel (OAC). This information was not well-known outside of his office so the judge determined that Korb’s disclosure was more than just a policy disagreement, so it was protected as whistleblowing activity (under the category of gross mismanagement).
  • Korb also engaged in protected activity when he assisted a co-worker in filing a grievance.

Here’s what MSPB did to Korb in response:

  • Charged him with misconduct for altering boilerplate language in a case writing template, and proposed a 21-day suspension for the alleged misconduct.
  • Reassigned one of Korb’s significant job duties (writing the MSPB Case Report) to another office.
  • Did not select Korb for a promotion.

In the decision, the judge found that the disclosures Korb made to his OAC supervisors and the MSPB Chairman about the delay in case processing times reflected poorly on higher management at MSPB found that MSPB leadership was motivated to take a personnel action because Korb had engaged in protected activity, and that they would not have done so had the appellant not engaged in that protected activity. The agency did show by clear and convincing evidence that it would not have selected Korb for the promotion, so on that allegation MSPB prevailed.

The damages issue has not been decided and there will be a hearing on that issue, but a few corrective actions have been ordered and acted upon:

  • The duty of writing the MSPB Case Reports has been returned to Korb, and his performance standards have been adjusted to reflect what they would have been prior to the reassignment of that duty to another department
  • The Notice of Proposed Suspension has been removed from Korb’s OPF

Interestingly enough, this case is non-precedential but I guarantee, we don’t see cases like this every day. Each party has until April 6 to decide if it will file a Petition for Review (PFR) of the judge’s decision. If either side does, it will be interesting because PFRs generally go to the Board members for review. Because the Board Chairman was named in this complaint and because the Board is a party to this litigation, there is an apparent conflict of interest. We will have to wait to see what the Board members do if a PFR is filed. None of the options are particularly attractive. Stay tuned. Hopkins@FELTG.com

Korb v. MSPB decision full text.

Sorry, but Your Illegal Agency Accommodation Policy Doesn’t Supersede the Law

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By Deborah Hopkins

Can an agency policy overwrite existing law, if it’s specialized to a very small group of employees? In a word, nope. This article provides a review of reasonable accommodation requirements, courtesy of TSA. Two issues are central to this case: (1) reasonable accommodation requirements for individuals with disabilities, and (2) internal agency policies that conflict with the law.

In 2011, TSA subjected an employee to discrimination based on disability because it missed a crucial step in the required accommodation process under the Rehabilitation Act. Here’s a quick recap of the facts in Marielle L. v. TSA, EEOC No. 0720140024 (October 22, 2015):

  • A Transportation Security Officer (TSO) had a medical condition and made the agency aware of the condition
  • The medical condition meant that she could not lift 70 lbs, which was a requirement for the position as per the Aviation and Transportation Security Act (ATSA)
  • TSA declared that the employee was not qualified to do the job and no accommodation would allow her to lift 70 lbs; the employee agreed
  • Rather than consider reassignment, TSA gave the employee an application for retirement
  • The employee didn’t want to retire; leadership told her to request LWOP or else she’d be placed on AWOL
  • Employee was eventually terminated for physical inability to perform

The agency missed an important, legally-required step in the accommodation process when they did not consider available reassignments. Let’s review the requirements.

When making an accommodation request, an employee must show that (1) She is an individual with a disability, (2) She is a qualified individual with a disability, and (3) The Agency failed to provide a reasonable accommodation. From there, the agency is required to accommodate the employee unless doing so would cause an undue hardship, or no accommodation is available.

But, it doesn’t stop there. If the agency cannot provide a reasonable accommodation or no accommodation is available for that job, the agency must next consider reassignment as an accommodation – and this is where TSA messed up. The agency must look for a vacant, funded position for which the employee is qualified, and not just within the agency but all the way up to the Department level, which in this case would mean DHS-wide. If no vacant, funded position is available at the employee’s grade level the agency must look for lower-graded positions for which the employee is qualified. Once these options have been exhausted and no position is available, only then may the agency remove the employee for inability to perform.

Here’s where issue 1 (consider reassignment) meets issue 2 (internal policy that violates the law). The agency argued that they could remove the employee because the ATSA specifies that if an employee does not meet the requirements of the TSO position, that employee may be removed. The ATSA also specified that the TSO who cannot perform is not eligible for accommodation, including reassignment. The AJ told the agency that internal policy did not supersede the Rehabilitation Act requirement of considering reassignment as an accommodation and that the policy be modified to reflect the law. The agency argued that the AJ’s authority did not include a requirement that TSA change a national policy, but the EEOC disagreed, because changing the policy would simply reflect “the obligation [TSA] already has – to offer a reasonable accommodation in the form of reassignment, when appropriate, to TSOs.”

There you have it. Internal policies cannot override the law. Therefore, the agency had to pay out compensatory damages, attorney fees and costs for discriminating against the employee.

This stuff is important and even though it may seem basic, it’s clear from the case above that agencies get it wrong because they don’t know the law. We teach a whole day on Reasonable Accommodation Under the ADA and Rehabilitation Act during Absence & Medical Issues Week, next held February 1-5 in Washington, DC. Or, bring FELTG onsite and we’ll teach you all about it on your home field. You can’t afford to make a mistake like this! Hopkins@FELTG.com