EEOC Finds @StateDept’s Denial of Reasonable Accommodation and Disability Discrimination Unlawful

 

Via The Digest of Equal Employment Opportunity Law | Volume 1Fiscal Year 2019

The federal government, including the Agency, is charged with being a “model employer” of individuals with disabilities. See 29 C.F.R.  1614.203(a). Inherent in this duty is an obligation to break down artificial barriers which preclude individuals with disabilities from participating on an equal footing in the work force. Accordingly, the Rehabilitation Act requires federal agencies to make various types of “”reasonable accommodation” for federal employees who have disabilities. This requirement helps ensure that such federal employees will be able to perform the essential functions of their positions, and enjoy all the benefits and privileges of employment enjoyed by non-disabled employees. See Appendix to Part 1630 – Interpretive Guidance on Title I of the Americans with Disabilities Act (“Appendix to Part 1630″), at Section 1630.2(o): Reasonable Accommodation.” (via)

Via ssa.gov

Denial of Reasonable Accommodation & Disability Discrimination Found.

Complainant filed an EEO complaint alleging, among other things, that the Agency denied him reasonable accommodation, and discriminated against him based on his disability when it rated him “unsuccessful” on his performance evaluation. On appeal, the Commission found that the Agency failed to show that providing any of Complainant’s many requested reasonable accommodations would cause an undue hardship. The Agency’s broad rejections did not reflect the specificity required of an individualized assessment, nor a consideration of the factors comprising an undue hardship. Further, the Commission noted its concern with the Agency’s lack of participation in the interactive process. The Agency not only rejected Complainant’s numerous suggestions, but it failed to suggest any alternatives and blamed Complainant for the alleged breakdown in the interactive process. The Commission further found that Complainant’s “unsuccessful” rating was also discriminatory. While the record contained evidence of Complainant’s ongoing performance problems throughout the year, including numerous emails from his supervisor, the Commission observed that some of the emails followed Complainant’s requests for accommodation. Moreover, the major life activities that were impacted by Complainant’s PTSD, for which he was seeking a reasonable accommodation, were the same skills identified by management as needing improvement (i.e. focus, concentration, and avoiding distractions). Among other things, the Agency was ordered to immediately take all steps necessary in accordance with Commission regulations to provide Complainant with reasonable accommodation; to rescind and expunge the unsuccessful rating; and to determine Complainant’s entitlement to compensatory damages. The Commission affirmed the Agency’s finding that Complainant failed to prove his claim of harassment. Wilmer M. v. Dep’t of State, EEOC Appeal No. 0120160352 (Feb. 22, 2018).

Denial of Reasonable Accommodation & Reprisal Discrimination Found.

Complainant, who had a mixed connective tissue disease, alleged she was denied a reasonable accommodation, and subjected to reprisal when the Agency included certain elements in her work commitments. Complainant requested to telework an additional day each week due to her extended commute and per her doctor’s recommendation. However, Complainant was placed on a new team with “face-to-face” and “physically available” commitments. On appeal, the Commission found that Complainant could perform essential function of her job with a reasonable accommodation of telecommuting. Complainant identified a reasonable accommodation of telecommuting two days a week and fully complied with Agency procedures. Rather than provide the requested accommodation, however, the Agency denied Complainant’s request, and only months later granted situational telework. The Commission found that this was ineffective, because Complainant’s condition merited consistent telework to address her symptoms and to prevent exacerbation of her condition. While Agency managers indicated that there was not sufficient work for Complainant to do while teleworking, no basis was shown for this assertion. The Commission cited significant issues with the manner in which the Agency engaged in the interactive process, including continuing to require further medical documentation despite the fact that the Agency already had the information in its possession. The Commission concluded that the Agency did not make a good faith effort to provide Complainant with reasonable accommodation. The Commission also found that Complainant was subjected to reprisal when her work commitments were revised to include terms like “face to face” and “physically available.” The Commission noted the close temporal proximity between Complainant’s request for reasonable accommodation and the change in her work commitments, and stated that Complainant was the only employee impacted by the reassignment whose new commitments evinced a clear disapproval of telework. The Agency was ordered, among other things, to provide Complainant with the option of teleworking two days per week if she still occupied her position or a similar position, investigate Complainant’s claim for damages, and provide appropriate training for the responsible management officials. Alejandrina L. v. Dep’t of State, EEOC Appeal No. 0120152145 (Nov. 16, 2017).

 

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Burn Bag: @StateDept’s Reasonable Accommodation For a Pregnant Diplomatic Courier?

Via Burn Bag:

Pregnant diplomatic courier told to use a portable travel toilet, undress in the presence of LES driver and urinate in the back of the truck. This is the best accommodation her supervisor and DRAD* could come up with. Another example of **pregnancy discrimination that is running rampant in the State Department.

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Physical requirements  via careers.state.gov:

A Diplomatic Courier must have the physical endurance to withstand the physical stresses from working long hours, lack of sleep, extremes of heat or cold, and other discomforts and the physical strength to lift and move heavy and/or oversized items such as diplomatic pouches and crates that may weigh as much as 70 pounds or carry heavy equipment. A Diplomatic Courier is required to perform work that requires regular and recurring periods of prolonged sitting, standing, bending, and stretching and is often required to physically move and transport heavy items; that could involve climbing ladders and working in and around aircraft, trucks, trains, aboard ships, etc. Related activities include crawling, maneuvering, and working in cramped spaces.

3 FAM 3350 | LEAVE AND REASSIGNMENT OF DUTIES FOR MATERNITY AND PATERNITY REASONS

* HR/OAA/DRAD is the Disability and Reasonable Accommodations Division in the Office of Accessibility and Accommodations, Bureau of Human Resources at the State Department

** The Pregnancy Discrimination Act of 1978 is an amendment to Title VII of the Civil Rights Act of 1964.  Discrimination on the basis of pregnancy, childbirth, or related medical conditions constitutes unlawful sex discrimination under Title VII. See more: https://fam.state.gov/fam/03fah03/03fah030110.html#H112

 

State Dept Seeks Security Protective Specialists: 45K+, Limited Non-Career Appointments

— Domani Spero
[twitter-follow screen_name=’Diplopundit’ ]

 

Via usajobs.gov:

On October 6, the State Department opened the application period for Security Protective Specialists (SPS).

The Department of State, Bureau of Diplomatic Security (DS) is seeking highly qualified and motivated men and women with extensive experience in protective security operations to serve in the Foreign Service at certain U.S. embassies, consulates and regional offices abroad.

This workforce will be deployed to Afghanistan, Iraq, Pakistan, Libya, Yemen and North and South Sudan and other high threat posts to supplement DS Special Agents in the supervision of contractor personnel and the provision of personal protection for Department employees. As members of a diplomatic team, Security Protective Specialists not only help to accomplish the mission of the Department of State, but also represent the United States to the people of other nations.

Screen Shot 2014-10-08

 

All assignments will be at the needs of the service. After the initial tour, SPSs may be transferred to other high threat posts overseas for two consecutive 2-year tours of duty.

There is no provision for election of post of assignment.

A limited, non-career appointment to the Foreign Service involves uncommon commitments and occasional hardships along with unique rewards and opportunities. A decision to accept such an appointment must involve unusual motivation and a firm dedication to public service. The overseas posts to which SPSs will be assigned may expose the employee to harsh climates, health hazards, and other discomforts and where American-style amenities may be unavailable. Assignments to Afghanistan, Iraq and Pakistan, are particularly challenging and may result in bodily injury and/or death. However, a limited appointment to the Foreign Service offers special rewards, including the pride and satisfaction of representing the United States and protecting U. S. interests at home and abroad.

Job Details:

Security Protective Specialists must perform duties in the field that are physically demanding. SPSs must be willing and able to meet these physical demands in high-stress, life and death situations. The SPS’s life and the lives of others may depend upon his/her physical capabilities and conditioning. Candidates must pass a thorough medical examination to include Supplemental Physical Qualification Standards. A qualified candidate may not have a medical condition which, particularly in light of the fact that medical treatment facilities may be lacking or nonexistent in certain overseas environments, would constitute a direct threat to the health or safety of the individual or others, or would prevent the individual from performing the duties of the job.

Security Protective Specialists are required to perform protective security assignments with physical demands that may include, but are not limited to, intermittent and prolonged periods of running, walking, standing, sitting, squatting, kneeling, climbing stairs, quickly entering and exiting various vehicles, enduring inclement weather which may include excessive heat, as well as carrying and using firearms.

Security Protective Specialists perform other functions that may require jumping, dodging, lying prone, as well as wrestling, restraining and subduing attackers, or detainees. SPSs must be able, if necessary, to conduct security inspections that may require crawling under vehicles and other low clearances or in tight spaces such as attics and crawl spaces.

Sometimes it may be necessary for a SPS to assist with installing or maintaining security countermeasures, which might involve lifting heavy objects and working on ladders or rooftops. SPSs must be skilled at driving and maneuvering a motor vehicle defensively or evasively in a variety of situations and at various speeds.

Security Protective Specialist candidates are expected to already possess many of the skills discussed in previous paragraphs but all will receive identical training to insure consistency. This training will include firearms training, defensive tactics, restraining an attacker and specialized driving techniques. SPS candidates must be able to participate in and complete all aspects of their training.

Candidates must be willing and able to travel extensively throughout the world. Traveling and assignments abroad may involve working in remote areas where traditional comforts and medical facilities are limited. SPSs may be required to travel to locations of civil unrest where conditions are potentially hostile and where performance of duties is conducted under hazardous circumstances.

No felony convictions:

Applicants for the Security Protective Specialist position must not have been convicted of any felony charge. In accordance with the Lautenberg Amendment to the Gun Control Act, a person convicted of a misdemeanor crime of domestic violence may not possess a firearm. Applicants must be able to certify that they have not been convicted of any such violation and that they are not otherwise prohibited from possessing firearms.

The job page includes a new section on reasonable accommodation (most probably steaming from the recent EEOC ruling):

The Department of State provides reasonable accommodation to applicants with disabilities. Applicants requiring reasonable accommodations for any part of the application or hiring process should so advise the Department at ReasonableAccommodations@state.gov within one week of receiving their invitation. Decisions for granting reasonable accommodations are made on a case-by-case basis.

Read the entire announcement here.

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