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March 29, 2024

Federal Employee Retirement and Benefits News

Tag: section 501

section 501

GSA Is Being Sued

GSA

Not good news for GSA and then again it might be.  Sometimes hard lessons are the best teachers not only for those involved but for the nation as a whole.  The General Services Administration (GSA) is the marketing and sales vehicle for the United States Government.  They sell and they purchase products at the best value for the government through vendors who must register in a system called SAM (System for Award Management.)  SAM was intended to consolidate the previous systems used by vendors to sell to the government; ORCA, Fed/Reg, CCR and EPLS.  There is no cost to register in the system.  Many have complained about the system not being user-friendly and sometimes causes delayed outcomes due to the inability to navigate the system.

Possible Win-Win in GSA Lawsuit

Because of that very same issue, the American Federation for the Blind is suing the GSA because they contend that blind vendors have no way of working successfully inside of the SAM system.  GSA is arguing that the suit is unnecessary because they have an internal mechanism of addressing such concerns from customers and vendors.  However, the Federation feels it very necessary to point out non-compliance with the ADA regarding specific accommodations for the blind.  While the GSA may see this as an inconvenience, it is probably another one of those win-win situations for the whole.

I am certain that policies and guidelines now in place for persons with disabilities strive to provide parity in every way possible.  Often with the best of intentions, we might simply overlook an accommodation because we do not have the disability ourselves.  I don’t believe there is an ill-intention in most cases or a desire not to make life as easy as possible for the disabled.  It is simply more often an oversight of which attention must be raised.  I don’t see the suit against GSA as something negative or bad, but as a call to action and awareness about how SAM needs to be strengthened and/or expanded to meet the needs of all customers and vendors.

Think of it, if persons with disabilities and individuals sensitive to the needs of the disabled had not raised a red flag then we would not have the Americans With Disabilities Act (ADA).  Every slap  on the hand is not meant to hurt but to inform and advance the humanity of the nation.

P.S.  Always Remember to Share What You Know.

ADA Related Articles

Houston, I Think We Have A Problem! The Inherent Dilemmas of a Schedule “A” Appointee

Amendments to ADA

Schedule “A” Not Always At The Front Of The Class

Self-Identifying Disabilities

Requiring a Medical Examination For Employment

Report Discrimination – Even Before It Occurs

The Congress and ADA

Congress and ADA

President George W. Bush signed into law the ADA Amendments Act on September 25, 2008, with a statutory effective date of January 1, 2009. Public Law 110-235, sec. 8.  The Amendments Act made very important changes to the definition of disability.  President Bush intended to give persons with disabilities an easier venue by which to establish their disability when seeking protection under the Act.

It is noted that the definition of “disability” was too narrowly focused to benefit the disabled.  The Amendments Act helped to achieve the goal of providing protection to the disabled by explicitly rejecting the holdings in a number of Supreme Court decisions that overwhelmingly limited the definition of disability.  As amended by the ADA Amendments Act, the definition of disability under the ADA, 42 U.S.C. 12101, et seq., is to be construed broadly to the maximum extent allowed by the provisions of  ADA.  Further an individual should not have to employ extensive analysis  to determine whether an individual has a disability or not.

The United States Congress enacted the ADA Amendments Act  in response to a number of Supreme Court decisions that narrowly defined the term disability denying protection for many individuals that Congress intended under the original Act. Public Law 110-325, sec. 2.   The Supreme Court ruled against many disabled persons because of narrowly defining the terms – disability, substantially, major and regarded as.  Because of the Supreme Court decision in Sutton v. United Air Lines, Inc., 527 U.S. 471 (1999) and Toyota Motor Manufacturing, Kentucky Inc., v. Williams, 534 U.S. 184 (2002), many lower courts ruled in a number of cases that individuals with a range of sound limiting impairments were not persons with disabilities and were not protected by the ADA.

Many of the court decisions impacted employment, but the narrowing of the term disability had a negative bearing on individuals from all avenues seeking protection under ADA.  The court’s ruling had a profound impact on individuals seeking reasonable accommodations with learning challenges in education programs from elementary schools to colleges and universities.   Again, because of the narrow interpretation of what the Congress originally intended for ADA, concluding that in the cases of Sutton and Toyota the definition of disability was much more narrowly applied than what Congress had intended. For that reason the Congress passed the ADA Amendments Act of 2008 intending to change the environment, including the legal environment, so that disabled individuals can be protected from discrimination under the ADA.

P. S.  Always Remember to Share What You Know.

Dianna Tafazoli

Schedule ‘A’ – What is a Reasonable Accommodation

 Reasonable Accommodation

Reasonable Accommodation is an important aspect of the Americans with Disabilities Act (ADA)Reasonable Accommodation is any adjustment to a job or the work environment that will enable an applicant, otherwise qualified for a job, the opportunity to take part in the application process and perform the basic functions of the job.  Reasonable accommodations include adjustments to make certain that disabled individuals are afforded the same opportunities as persons without disabilities.

What Are Reasonable Accommodations?

Reasonable accommodations may include making existing facilities easily accessible by individuals with a disability, modifying work schedules, refashioning a job, modifying examinations, training or similar programs.  Agencies are not required to lower standards as an accommodation to the disabled but must make ‘Reasonable Accomodations’ to provide a Schedule “A” appointee with access and ability to perform the work their job requires.  The disabled person must be able to perform the essential duties of the job, but adjustments may have to be made in order to help the disabled individual perform those tasks.

Reasonable Accommodation Limitations

There are limitations on the obligations employers must make to accommodate disabled employees.  The word reasonable also means that the accommodation should not place an undue burden on the employer.  The cost should not be so overwhelming as to cause a hardship on the employer.  Larger organizations with greater resources should be expected to make more accommodations than a small organization with fewer resources.  Further, an employer is only required to accommodate a known disability of a qualified applicant or employee.

P. S. Remember to Share What You Know

ADA Related Articles

Houston, I Think We Have A Problem! The Inherent Dilemmas of a Schedule “A” Appointee

Amendments to ADA

Schedule “A” Not Always At The Front Of The Class

Self-Identifying Disabilities

Requiring a Medical Examination For Employment

Report Discrimination – Even Before It Occurs

Requiring a Medical Examination For Employment

Medical Examination

Many potential applicants get very unnerved over the thought of having to take a physical or medical examination to gain employment.  A medical examination is defined as a procedure or a test to determine fitness for duty or an individual’s physical or mental status.  An employer cannot ask an applicant to participate in a medical examination prior to a conditional offer of employment.  Sometimes identifying whether a procedure is a medical examine or not is not always straight forward.    The EEOC outlines the following factors to help applicants determine the validity of medical examinations:

–  Is the examination designed to reveal an impairment of your physical or mental health?

–  Is the examination given by a health care professional or someone trained by a health care professional?

–  Will the results of the examination be read or interpreted by a health care professional or someone trained by a health care professional?

–  Is the purpose of the examination to determine the physical or mental health of the applicant?

–  Is the examination invasive requiring collection of body fluids such as blood or urine?

–  Does the examination measure the applicant’s performance of a task or physical response to performing the task?

–  Is the examination given in a medical setting or in a health care professional’s office?

–  Is medical equipment used?

All of the factors above don’t necessarily have to be met to determine if a procedure or test is a medical examination.  If you don’t feel comfortable or you feel like something just isn’t right ask questions and also understand that you don’t have to allow anything that you don’t feel right about.  Certain positions might require a medical examination, but it is your right to ask questions and make sure it is what it purports to be.

P. S.  Always Remember to Share What You Know.

ADA Related Articles

Houston, I Think We Have A Problem! The Inherent Dilemmas of a Schedule “A” Appointee

Amendments to ADA

Schedule “A” Not Always At The Front Of The Class

Self-Identifying Disabilities

Report Discrimination – Even Before It Occurs

Schedule ‘A’ – What is a Reasonable Accommodation

Self-Identifying Disabilities

Identifying Disabilities

There are some disabilities that might be obvious and others that are not.  Human Resources Offices have a huge responsibility to the agency’s first customers – the employees – and to the agency itself.  Leaders of Human Resources need to make certain supervisors and managers understand how to keep the workplace environment free from harm, danger and situations not conducive to the forward movement of the organization.

Employers may invite applicants to voluntarily self-identify for the purpose of their affirmative action program.  Employers asking employees to voluntarily self-identify do so because federal, state, or local law including veterans’ preference laws require affirmative action for persons who would otherwise qualify as Schedule A appointees.  Essentially the law requires that steps be taken to advocate for such individuals.

Often state or local laws may support affirmative action.  When such is the case, employers are allowed to invite self-identification to be used specifically to benefit persons with disabilities.  Employers must be very clear and specific on written questionnaires or orally that the information being sought will be used for no other reason than to support affirmative action efforts.  Organizations must also make it clear that providing any self-identity information is strictly voluntary and that the information is confidential in accordance with the Americans with Disabilities Act (ADA) guidelines and any Amendments.  Applicants must also be informed that refusing to participate or provide information will not result in any adverse action and will be used in accordance with ADA regulations and guidelines.

To protect the integrity of self-identification and to keep the information confidential, the employment application must be kept separate from the self-identifying information.    I think it is also important to mention that organizations are prohibited from asking third parties any questions or seeking any information it could not ask the applicant to provide directly.

P. S.  Always Remember to Share What You Know.

ADA Related Articles

Houston, I Think We Have A Problem! The Inherent Dilemmas of a Schedule “A” Appointee

Amendments to ADA

Schedule “A” Not Always At The Front Of The Class

Requiring a Medical Examination For Employment

Report Discrimination – Even Before It Occurs

Schedule ‘A’ – What is a Reasonable Accommodation

Schedule “A” Not Always At The Front Of The Class

improving employment opportunities

Getting organizations to use the hiring authority under Schedule A is not always as simple as that.  Although organizations are given special hiring authority to increase hiring of Schedule “A” appointees, efforts still fall short of expectations.  Excepted service appointing authorities are important tools for improving employment opportunities for persons with disabilities in the Federal Government.

Hiring officials should ask applicants questions about job qualifications and the applicant’s ability to perform the essential functions of the position.  Applicants need to present their qualifications in the best manner possible that show their abilities and skills.  Hiring officials are prohibited against asking questions about an applicant’s disability unless the questions are related to the function of the job and predicated on the business needs of the position.

It cannot be emphasized enough the need for agencies to use Schedule A to recruit and retain persons with disabilities to help to build a truly diverse workforce.  Employment conditions previously were not designed to encourage the hiring of people with disabilities.  Questions were asked specifically about the disability of applicants meant to exclude persons with disabilities before their ability to perform the job could be evaluated.  Applicants were often asked about their medical conditions when completing applications or having references checked.  The tactic was perceived as a strategy to distract applicants and perhaps cause them to fall short of a stated requirement.

Schedule A appointees had no way of knowing why they were rejected.  The applicant didn’t know if the disability was at issue or if a bad reference was given or the skills did not match the requirements of the job.  Congress has taken steps to separate skills from a person’s medical condition.  Diversity is a relatively new phenomenon whose concepts were not previously a part of an agency’s overarching strategic plan.

The law does not allow employers to ask questions about a person’s disability or conduct a medical examination until after a conditional offer of employment has been made.  Making the job offer prior to pursuing anything related to a person’s disability allows for the appropriate evaluation of the applicant’s non-medical qualifications.  It is not against the law to ask questions to determine the applicant’s ability to perform a particular job function.  Employers can require a medical examination of a newly hired disabled persons as long as all persons entering a similar category of work are required to have a medical examination.

A good rule of thumb is what you do for one do it for all.

P. S. Always Remember to Share What You Do.

ADA Related Articles

Houston, I Think We Have A Problem! The Inherent Dilemmas of a Schedule “A” Appointee

Amendments to ADA

Self-Identifying Disabilities

Requiring a Medical Examination For Employment

Report Discrimination – Even Before It Occurs

Schedule ‘A’ – What is a Reasonable Accommodation

Report Discrimination – Even Before It Occurs

OPM

One of the questions I am often asked in American with Disabilities Act (ADA) workshops is when can a disabled person allege discrimination, before or after an act occurs?  The Americans With Disabilities Act actually allows a person to allege discrimination against a business when he/she has a reasonable belief that discrimination is about to take place.

Now some would say how can you allege discrimination when nothing has actually happened.  The provision is good because the allegation of discrimination allows businesses that are constructing public accommodations to be aware of the guidelines governing ADA access for the disabled.  Prior knowledge will save the entity money by allowing for the correction of ADA challenges prior to construction.  For example, if a persons uses mobility devices such as a wheelchair and an accommodation’s blueprints call for all stairs to gain access, then it would be impossible for the wheelchair bound person to use the facility.

Having this default called to the attention of the construction team and the owner of the proposed facility beforehand is a win-win situation for all involved.  The construction does not have to be put on hold because of permit denial and the disabled person does not have to actually sue the entity.  All of the concerns that would render the entity inaccessible to the disabled should be addressed in the planning stage realizing a far less expensive venture for the operation.  Public accommodation provisions became effective in January, 1992.  So what about buildings constructed prior to that time?

The ADA allows the Attorney General to certify State laws, local building codes and ordinances similar in scope whose accessibility requirements meet or exceed the accessibility requirements for public and commercial accommodations.  The certification is only issued after a hearing of interested persons, including persons with disabilities, have an opportunity to contest the issuance of the certification.

We are placing a great deal of emphasis on the Americans With Disabilities Act in our series of postings because the Act impacts every phase of the employment process, including retirement.  Many individuals with disabilities work tirelessly in the Federal service.  They have the same questions and concerns as anyone anticipating retirement, perhaps even more.  They might have asked for a reasonable accommodation within their agency to facilitate the performance of their duties and responsibilities.  However, upon retirement, just like other retirees their agency will no longer be responsible for them.  Individuals after retirement fall completely under the auspices of the Office of Personnel Management.

Does the Office of Personnel Management have accommodations to answer the challenges and opportunities of the disabled retiree and his/her family?  A great deal of communication often in the early stages of retirement is necessary between the federal annuitant and the Office of Personnel Management.  OPM is required to follow ADA guidelines ensuring effective communication policies are observed.  The ADA requires the establishment of telephone relay accommodations for people who utilize telecommunication devices for the hearing impaired (TDD) or similar devices.  The Federal Communications Commission issues all regulations outlining the standards for operating services.

It is important to find out what services are available to you so that you can effectively use them when the time comes.

P.S.  Always Remember to Share What You Know.

ADA Related Articles

Houston, I Think We Have A Problem! The Inherent Dilemmas of a Schedule “A” Appointee

Amendments to ADA

Schedule “A” Not Always At The Front Of The Class

Self-Identifying Disabilities

Requiring a Medical Examination For Employment

Schedule ‘A’ – What is a Reasonable Accommodation

ADA and Disability Resources

Disability Resources

There are a number of Federal agencies with American with Disabilities Act (ADA) responsibilities:

U.S. Equal Employment Opportunity Commission  (Employment)

Federal Communications Commission (Telephone Relay Services)

U. S. Access Board (ADA Guidelines)

U. S. Department of Transportation, Federal Transit Administration (Transportation)

U. S. Department of Education (Education)

U. S. Department of Agriculture (Agriculture)

U. S. Department of Health and Human Services (Health Care)

U. S. Department of the Interior (Parks and Recreation)

U. S. Department of Housing and Urban Development (Housing)

U. S. Department of Labor (Labor)

Federal Emergency Management Agency (FEMA)

Small Business Administration (Business)

U. S. Department of Justice (Wounded Warriors; Victims of Crime)

Disability services and resources are available to the disabled at number of agencies and private sources.

P. S.  Always Remember to Share What You Know.

ADA Related Articles

Houston, I Think We Have A Problem! The Inherent Dilemmas of a Schedule “A” Appointee

Amendments to ADA

Schedule “A” Not Always At The Front Of The Class

Self-Identifying Disabilities

Requiring a Medical Examination For Employment

Report Discrimination – Even Before It Occurs

Schedule ‘A’ – What is a Reasonable Accommodation

The Arms of Justice Reach ADA

Americans With Disabilities Act

The Federal Government is committed to upholding the provisions of the Americans With Disabilities Act (ADA) through provisions governing Schedule A.  Schedule A allows the disabled greater access to employment opportunities.  The disabled may gain employment via two venues.  They may be hired on a noncompetitive basis via the hiring authority of Schedule A or by competition within the protected class.  The ADA was at conception enacted into public law format, but was later reorganized and published in the United States Code.

Attorney General Eric Holder signed the Department of Justice’s final revised ADA regulations, including ADA Standards for Accessible Design, on July 23, 2010.  The official narrative was published in the Federal Register September 15, 2011 with corrections published in the Register on March 11, 2011.  Regulations impacting Title II and Title III were effective until March 15, 2011,  leveraging an opportunity to amend and or adjust regulations that fit the changing needs of the Act and those who depend on it to protect and guarantee their rights.

Title II outlines requirements for State and Local Governments while Title III outlines requirements for Places of Public Accommodation.  The Department of Justice’s revised regulations focused on Service Animals, Exams and Courses, Ticketing, Effective Communication, Lodging, Wheelchairs and Other Mobility Devices,  Detention and Correctional Facilities, and Standards for Accessible Design (parking).

ADA covers a number of accommodations and provisions to ensure opportunities for the disabled.  There is seemingly no apparent issue about ADA on its face,  proper and appropriate implementation remains the conundrum.  One of the big pieces missing from the puzzle for ADA is the lack of a stiff penalty imposed on public entities and private businesses failing to provide annual mandatory training on  guidelines governing ADA.  I maintain that for the most part, enterprises are not deliberately trying to make things difficult for the disabled, they are simply unaware of the extent of the provisions and regulations that the ADA govern.

Enforcement of ADA regulations should begin before a lawsuit or a grievance is filed.  The damage and the suffering to the disabled individual or individuals have in many cases already been done, further exasperated by engaging in a legal battle to secure rights that already exist.  Human Resources Offices must advocate for training resources to equip their organizations with the tools necessary to support ADA.  Knowing the rules and how to implement them consistently without bias save organization money in litigation costs and increase their commitment to equal opportunities in the workplace.

P. S.  Always Remember to Share What You Know.

ADA Related Articles

Houston, I Think We Have A Problem! The Inherent Dilemmas of a Schedule “A” Appointee

Amendments to ADA

Schedule “A” Not Always At The Front Of The Class

Self-Identifying Disabilities

Requiring a Medical Examination For Employment

Report Discrimination – Even Before It Occurs

Schedule ‘A’ – What is a Reasonable Accommodation

The Inherent Dilemmas of a Schedule “A” Appointee

Schedule A Appointees Challenges

federal employees

On May 15, 2014, the U.S. Equal Employment Opportunity Commission (EEOC/Commission) published an Advance Notice of Proposed Rulemaking in the Federal Register (79 Fed.Reg. 27,824-27,826). The Notice was titled “The Federal Sector’s Obligation To Be A Model Employer of Individuals with Disabilities.” The EEOC is seeking public comment on how to implement the federal government’s statutory obligation to be a “model employer” of the disabled.  The Notice seeks answers to questions about the hiring of disabled employees, retention, promotions, supervisorial and managerial accountability for hiring and retention of the same. A total of seven (7) questions are asked by the Commission to initiate discussion and comments for guidance on the strict specificity of what, in essence, does a model employer for the disabled look like. Comments are due by July 14, 2014.[1] The undersigned author respectfully requests that all federal employees, regardless of whether you are disabled, look at the questions proposed by the Commission found in the Federal Register at https://www.federalregister.gov/articles/2014/05/15/2014-11233/the-federal-sectors-obligation-to-be-a-model-employer-of-individuals-with-disabilities and respond.[2]

Section 501 of Rehabilitation Act

All responsibility for the administration and enforcement of equal opportunity in federal employment is vested in the EEOC. The Commission is authorized under 29 U.S.C. 794a (a)(1) to issue rules, regulations, orders, and instructions pursuant to Section 501 of the Rehabilitation Act. Pursuant to the above, the EEOC meets the necessary jurisdictional question as to whether the EEOC has standing to promulgate such laws, rules, regulations etc. The Chairwoman stated that her concern is in regard to additional guidelines and regulations as to the fulfillment of the statutory requirements of Section 501 of the Rehabilitation Act and what it means to be a “model employer” of individuals with disabilities in fear that federal agencies may not fulfill their obligations.  The author of this article is very concerned about the rights of the disabled when the federal government is relying on the public[3] to tell them how to be a leader, an educator, an enforcer, act without bias or prejudice, be an active listener, engage in substantial on-going dialogues with the disabled employee and support services, to research – assume the responsibility to be informed of what is available via technology, to advance the individual case of the disabled employee (for whom first, second and third level management is responsible), measures of supervisorial accountability and the consequences for failure to do what is required by law, just to list a few. Leadership, compassion, ethics, integrity and a moral compass cannot be legislated, taught or be learned. Regardless of a supervisor’s level of management, especially those who hold positions of first, second and third level supervisorial duties, if they hold biases and prejudices against disabled individuals, or are fearful of budgetary constraints, no regulation will move them “off the dime” to do anything – it will continue to be business as usual. And, when the agency does not comply or comport with the necessary actions required of them as to hiring, retention, promotion, training and full workplace integration will the agencies, the EEOC in particular, help them cover up the violations against the disabled by defending themselves against these types of charges as they have been since the EEOC was designated the “model employer” for the disabled? This narrows the question and leads to the even larger, more substantive question of what and who will monitor the actions of all actors and how accountable and to whom will they be held accountable?

In all respect, this question cannot be fully answered appropriately without knowing some history about the federal government’s obligation and responsibility towards the disabled.

American with DIsabilities Act (ADA) BACKGROUND FACTS

In 1990, Congress passed the Americans with Disabilities Act (ADA) which was incorporated into the Rehabilitation Act. In October of 1992, the the Rehabilitation Act was ameneded which adopted the nonaffirmative action standards of the ADA AND MADE THEM APPLICABLE TO THE FEDERAL GOVERNMENT.

On March 13, 1998, Executive Order 13078 was promulgated, titled “Presidential Task Force on Employment of Adults with Disabilities.” The task force was charged with creating a coordinated and aggressive national policy to bring working-age individuals with disabilities into gainful employment with the federal government at a rate approaching that of the general adult population.

On July 26, 2000, President Clinton issued Executive Order 13163, found at 65 Fed. Reg. 46.563 (2000) and titled “Increasing the Opportunity for Individuals with Disabilities to be Employed in the Federal Government.” Executive Order 13163 was issued to augment the hiring, placement and advancement of qualified individuals with a disability[5] into the federal workforce and to establish goals and facilitate Section 501 of the Rehabilitation Act.[6] Section 501 of the Rehabilitation Act contains a clause that mandates federal agencies to engage in affirmative action plans to incorporate the disabled into the federal workforce. The Order proposed that based on current hiring trends and increased the number of outreach type programs with the goal of hiring 100,000 disabled employees (severely disabled or targeted disabilities) within a five year period.

On June 18, 2001, Executive Order 13217 was issued with the goal of increasing the productive employment of adults with disabilities.

The Inherent Dilemmas of a Schedule “A” Appointee


On September 25, 2008, President Bush signed the Americans with Disabilities Act Amendment Act (ADAAA) with the effective date of January 1, 2009.

Reaching further back into time the Rehabilitation Act of 1973 prohibited discrimination of disabled employees in the federal government and Section 501 requires federal agencies to develop affirmative action programs for hiring, placement, and advancement of persons with disabilities. The Rehabilitation Act of 1973 has been amended numerous times.  Important to this article was an amendment in 1979 when the term “targeted disabilities” was first officially recognized by the EEOC. Targeted disabilities, as defined by the EEOC, are listed as follows: blindness (including low vision), deafness, missing extremities, partial paralysis, convulsive disorders, mental retardation,[7] mental illness, or genetic or physical conditions affecting limbs and or spine. Those individuals with targeted disabilities are precisely the ones the federal government purposefully seeks out because it is understood that these individuals are less likely to be employed in the private sector. Moreover, the chances of retention and advancement were far lower then what the federal government considered acceptable as it was statistically unrepresentative of a diverse workforce. Dozens and dozens of Management Directives promulgated by the EEOC as to the rights of the disabled and the obligations of management to the disabled have been issued since the 1970s, to name each and every one of them would unduly lengthen this article.

The above discussion serves as a bare outline of the history of incorporating disabled employees into the federal workplace and society’s attempt at breaking away from the once  stereotypes that people held about the disabled. Unfortunately, the bias and prejudices against the disabled run deeper in our society than originally perceived. The historical legal background supplies the reader with a perspective that allows for further examination and inquiry.

THE FEDERAL GOVERNMENT’S HIRING AND RETENTION OF DISABLED EMPLOYEES

A very successful method for achieving employability of the disabled came from the federal government’s Outreach Programs. Public forums were held by top federal government officials representing various agencies inviting those who were severely disabled to apply for positions within the federal government under what is referred to as the Scheduling “A” Appointment Authority.[8] Schedule “A” seeks out either targeted disabled employees or severely disabled employees who were certified as job ready[9] or through other factors determined as likely to succeed in a particular job.

Schedule “A” Appointees are hired with the understanding that the federal government has taken on a special obligation and responsibility to the disabled populace that is continuous and on-going in nature. Perhaps, under Title VII the wording should be changed to something more compelling such as “the federal government has expressed its obligation and responsibility as a moral imperative to hire, train, retain and promote disabled individuals into the federal workforce in the spirit of the law as intended by the past administrations and Congress.  Most agencies have been successful in recruiting the severely disabled. However, long-term statistics reveal that as an entity the federal government has not been successful in keeping these valued employees once hired. Retention of disabled employees and integration into the main stream workforce with the opportunities to promote and advance within the agency are in fact dismal. In 2012, the retention rate was .088%. The statistics for the year 2011 reflect that within the EEOC itself more than 27,000 complaints were filed against the EEOC by its own employees for failure to accommodate and disability discrimination. The very same Agency who wrote the laws and via legislative existence is the enforcement agency for such. Even they fail to do what the law requires.

A Cornell University Study conducted in 2002 demonstrated that the top agency officials were clear as to their mission under these programs, and the obligations and responsibilities brought to bear upon them when undertaking these commitments. However, the key fell away from the lock when the employee is first assigned to his or her agency position. The real problems arise when those supervisors at the first, second and often third level are unaware of what is necessary for them to keep these employees and to fulfill the federal government’s obligations and responsibilities towards Schedule “A” employees and the affirmative duty to build a unique and diversified workforce.[10]

When a Schedule “A” employee reports to duty it should be so with the understanding that certain accommodations will be waiting for them so that they may begin their duties with all effective technical assistance that will allow them to be functioning at their highest level of competence, be competitive with their colleagues and facilitate their position assignments such that they are able to work under conditions which would not distract them from the successful completion of the same.[11] Therefore, it would make immeasurable sense that the agency contact the prospective employee and determine from them what accommodations are reasonable, ergo, effective, for the newly hired severely disabled employee to complete the essential functions of their positions. Most of these employees have been certified as employment ready by various state and federal rehabilitation centers and adequately prepared to enter into the workforce with the knowledge, skills, and abilities to perform the positions they are assigned to, with a firm grasp of specific technologies necessary to succeed.

Memmer v. Environmental Protection Agency,[12] is a case currently before the EEOC Commission as to the Agency’s obligations and responsibilities towards a Schedule “A” hire. The case reads like a typical Schedule “A” case where no one (at least from the first level through the third level supervisors) was even aware that Memmer was a Schedule A hire, nor were they aware of their obligations and responsibilities towards a Schedule “A” Appointee who was blind with a severe neck injury. The EPA telephoned the Complainant prior to her reporting to duty inquiring as to the accommodations she would need when she reported to work. She sent a list over a week in advance. Upon her arrival she was not even assigned an office or a computer, and no requested accommodations were made available. Her assignments for the first weeks, and months thereafter required intensive scientific reading without any technology to assist her. Moreover, her first level supervisor relayed to her that if any accommodations were to be funded from her current operating budget she would not be able to comply.

For someone who is blind, immediately assigned a difficult scientific task that required the ability to see and to see well, this was a frightening scenario. After all, the new hire had been invited to participate in an Outreach Program and told to apply for a position with the federal government as she had a targeted disability. Moreover, she was a recent graduate from the State Department of Rehabilitation. After spending hours hearing about the federal government’s commitment to seek out highly qualified severely disabled employees through the various Outreach Programs with the intent to integrate the severely disabled into their workforce, the employee was not just confused but extremely worried about her performance, and the ability to sustain her position. When the Agency would not comply she discovered a source for purchasing accommodations which would not cost the Agency any money. Good thing Ms. Memmer was a quick study. Unfortunately, her accommodations arrived on the day they terminated her, approximately, one year later.  Moreover, the Agency failed to contact the Schedule “A” Program Director at Headquarters to consult with her as to how to assist, help, keep, find a niche, and maintain a severely blind employee where the hiring commitment was to do so.

Interestingly enough, the administrative judge during Memmer’s hearing ordered the Agency to provide the Complainant with audio technology such that she could fully participate in the hearing process yet in her decision somehow held that the Agency provided effective

accommodations to Memmer by providing her with strong magnification. When a person is blind you can blow up the words to billboard size and it is absolutely worthless when the individual requires full-time audio technology combined with sophisticated equipment that supports such a program.

The Commission has not reviewed a Schedule “A” case in some time. A win for the Complainant in this case would send a message to all agencies that the promise they embark upon when hiring a Schedule “A” Appointee is one that is on-going and supportive in hopes of keeping the employee in a suitable position. Otherwise, what occurs is a tragic re-victimization of the severely disabled employee. The employee feels guilty because no one person assisted them full well-knowing it was impossible to see, staff and management pretended as if the disability was not present which at the very least belittled the employee and was cruel, while diminishing their overall feeling of contributing something worthwhile. Terminated without the proper oversight and advice of the Program Manager for Schedule “A” hires, without a chance to make the situation right – damages the disabled far more than if they had never held out hope through the federal government’s program to become a contributing member of society despite their severe disabilities. The purpose of federal legislation was to call society’s attention to the fact that disabled people are people too with goals, aspirations, dreams, and a need to feel a part of something greater. It is important to understand that those who cannot see with their eyes are still sighted as they too can visualize what is possible with technology. They have been trained for the position they sought, they have a life time of experiences to draw from with ideas that can make a difference in the success of any agency endeavor if allowed to blossom.  Memmer, while blind, had advanced scientific degrees and with audio technology was fully capable of “reading” important scientific reports, making deductions, drawing conclusions, and writing detailed reports. In another recent and on-going case, Murry v General Services Administration,[13] an 80% disabled Vietnam War Veteran, (female, African American with PTSD) was successfully performing for years until they moved her office into a rat infested building. She could have remained productive through hard work and guidance, if management’s commitment were such and GSA did not tread on her fears or use tactics to worsen them.[14]

The federal government has a long way to go to accomplish its mission. It is not for want of knowing what is the right thing to do and how to do it but it has to have the commitment to do so from the top down. The agency knows that it must educate first, second and third level management and then hold them to serious accountability as to why the employee was not retained or what they failed to do to enhance that employee’s chances of success. The agencies failure to retain those employees with targeted disabilities and/or severe disabilities has now re-victimized them again because these very same individuals, once terminated from the federal government are invariably blackballed from any employment elsewhere. A fact of government employment. Now, this severely disabled employee stands in a worse position then if he or she had never been hired by the federal government. Since this has been on-going for decades even state rehabilitation agencies which help prepare the severely disabled for employment are now reluctant to send their graduates to the federal government for employment.

We have great hopes that the EEOC Commission will address these cases in the near future with firm guidance for management.

IN CONCLUSION

The EEOC is now revisiting this very issue as President Obama’s 2010 Executive Order sunsets. Since the federal government has not been able to comply with the mandated orders we are being alarmingly alerted to the fact that if we, the public, do not comment, and with specificity, spell out to them how to comply with the law the federal government, in essence, will not and cannot meet the obligations and responsibilities spelled out under the laws as to Section 501 of the Rehabilitation Act and Schedule “A” Appointees.

This is no less shocking then the President sending out mass e-mails to constituents asking how to lead the nation, and by the way hurry with your answers. Regardless of how a situation may appear I am an eternal optimist. By extension, I ask you to be the same. As federal employees we have always gotten down to business and done the work as the job demanded, and for the most part, done it well. We are amazingly qualified under the doctrine of common sense. Perhaps, since the time is drawing near for comments we should ask for an extension as this is no small matter. You have the power of your voice and your pen. You can go through these seven questions individually or in groups and submit your comments. Please, let’s use the tools we have to bring to bear on this conundrum and stop the stonewalling of individuals who know better but cannot do better. After all, the EEOC gets paid the big bucks and they should solve this on-going problem themselves. Do not let inaction on their part harm so many others who deserve better from all federal employees. Not because we are mandated to do so, but because in doing so, we are helping those more vulnerable in a system seemingly stuck.

Respectfully submitted,

Honorable Mary Elizabeth Bullock (Retired)

Schedule “A” Related Articles

Amendments to ADA

Schedule “A” Not Always At The Front Of The Class

Self-Identifying Disabilities

Requiring a Medical Examination For Employment

Report Discrimination – Even Before It Occurs

Schedule ‘A’ – What is a Reasonable Accommodation

[1] Note, the short comment period.

[2] Even if you, yourself, are not disabled, but know someone who is and they are struggling for reasonable (effective) accommodations please take the time to help by reading and responding in kind to the above-referenced article.  By extension, life for all of us turns on a dime. There but for the grace of fate, you too could have an accident or fall victim to an injury or illness where the very time for input passed and now you are governed under the newly crafted rulings. Please, get involved. Real change only comes about when we all work towards a common goal. 

[3] The reason federal sector employees need to comment is based on the fact that all federal agencies will comment and if history is any indicator of how the various federal agencies feel about the disabled just check the number of complaints filed regarding disability discrimination and failure to accommodate by each agency. If those employees in the federal sector do not comment the EEOC will craft and draft the new regulations, and unfortunately, there is no data to indicate that they are more inclined to be altruist, but there is data that the Commission is compelled to grant less rights.

[4] It is simply impossible to write a treatise on this subject which would cover every law or nuance of the laws in the space of this article. The Rehabilitation Act has been subject to amended.

[5] The EEOC defines a “qualified individual with a disability” as follows: An individual with a disability who, with or without accommodations, can perform the essential functions of the position they hold or desire to hold.” 

[6] See President Obama’s Executive Order 13548 of July 26, 2010 wherein Obama issued the very same mandate as Clinton in 2000 with the same goal of hiring 100,000 disabled individuals by 2015.

[7] This is the current language and albeit politically incorrect the author does not have the prerogative to change the terms. Moreover, it is not inclusive of organic brain injuries or illnesses. As the terminology stands today it does not encompass or adequately express other issues which modern medical discoveries have made known in the last forty years.

[8] The U.S. Office of Personnel Management (OPM) states as follows: “The Federal Government is actively recruiting and hiring persons with disabilities. We offer a variety of exciting jobs, competitive salaries, excellent benefits, and opportunities for career advancement.” If you add travel and the opportunity to see new vistas it sounds familiar to a marine or army recruitment poster.  And we all know that serving in the military is NO SMALL JOB!

[9] Through State Department of Rehabilitation or other agencies which work with the disabled qualifying them for employment

[10] In some instances, the supervisorial chain was unaware that they had a Schedule ‘A” hire.

[11] Prior to the arrival of the newly hired disabled employee the agency should first and foremost be concerned that they do no further harm – with further injury or exacerbation of an already existing illness.

[12] See Memmer v. EPA, Docket No.: 0520120454; EEOC Case No.: 0120081695 and EPA Case No.: 20030016R06.  

[13] Murray v GSA, EEOC Document No.: 0120 140 180, Agency Case No.: GSA-13-R7-0134, 5TH Circuit Case No.:12-10779, USDC No.: 4:10-CV-400 2014.

[14] In Murry v GSA, the Complainant (female, African American, suffered PTSD) while in the Vietnam war theatre because the male soldier counterparts threw rats into the women’s tents for the thrill of it, and caused Murry to suffer a mental disability, PTSD. At some point in her tenure with GSA, Murry was placed in an office that was rat infested. The rats crawled on her person, in her desk, on her purse and ran over her feet on a daily bases. Murry, as an accommodation, asked to have the rats removed. GSA set a few wood rat traps and laid sticky paper down (with enticing cheeses) under her desk to capture these nasty rascals, but no other measures were taken to rid the building of the problem. When the Complainant moved from her desk after stepping on the sticky paper (laid directly underneath her desk) she sacrificed more than a couple pairs of shoes. This was not just problematic because of the personal loss of her shoes but she was then forced to walk barefoot sideways to avoid stepping on rat droppings (riddled with diseases) or into the huge wood traps holding more cheese (set under or around her work desk). Monday mornings were made worse since over the weekend some of the rats would indeed be captured by the traps and she would have to wait for someone to remove the rats prior to sitting down and starting this horrid cycle all over again. She too was terminated for her failure to be able to work under the conditions of her employment. (Side Bar: The visual here alone is shocking! The author would not have done well under these particular circumstances as well).

Other articles by Honorable Judge Mary Elizabeth Bullock

The Workplace Bully

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