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