Government Grows Disabled Worker Ranks, Struggles to Curb Disability Discrimination

The federal government is getting better at hiring individuals with disabilities, but based upon my experiences with clients, I believe there is definitely room for improvement when it comes to how it treats such employees.

The Office of Personnel recently released a report showing that the ranks of disabled individuals employed by the Executive Branch rose over the year by 9 percent to 204,189 in fiscal year 2011. This growth was driven in part by President Barack Obama’s Executive Order 13548, which was issued in July 2010 and set the goal of hiring 100,000 people with disabilities over five years.

Just as the federal government has gotten better at hiring individuals with disabilities, it appears to have also improved in reducing discrimination against them in some regards. For example, between the 2006 and 2011 fiscal years, there were significant decreases in disability discrimination complaints (mental and physical cases combined) over issues such as: assignment of duties (down 20 percent to 377 complaints); pay including overtime (down 18 percent to 254 complaints); medical examinations (down 35 percent to 67); and, reassignment denials (down 40 percent to 98 complaints), according to a Tully Rinckey PLLC analysis of data in the Equal Employment Opportunity Commission’s Annual Reports on the Federal Work Force.

Unfortunately, not all issues of alleged discrimination followed this downward trend. For example, mental and physical disability discrimination complaints over evaluations and appraisals rose by 37 percent during the five-year period to 313 complaints. Complaints over harassment were up 8 percent at 1,737 and reasonable accommodations complaints rose 10 percent to 1,217.

Posing a threat to the government’s hiring goals, complaints over appointments and hiring also rose over the five-year period by 32 percent to 263 complaints in fiscal year 2010. For the federal government to achieve its goal of ensuring that the representation of disabled individuals in the federal workforce accurately reflects that of the general population, it is crucial that disabled individuals assert their rights under the Rehabilitation Act, which is the public sector’s version of the Americans with Disabilities Act.

The EEOC case of Sipriano v. Napolitano (2011) highlights the discriminatory culture in some federal offices that disabled workers must overcome. This case involved a Department of Homeland Security clerk who was working part-time for the agency while attending school. The clerk suffered from a birth defect in his right ear and a hearing impairment that made it hard for him to understand multiple speakers or people not facing him. He was also sensitive to loud noises.

One day, the clerk was suffering from a bad migraine caused by loud noises in his work environment and as a side effect from a recent surgery. He was unable to locate his supervisors, but a person in charge gave him permission to extend his 15-minute break by 10 minutes. Shortly after the clerk put his head down, his supervisor passed by him, claimed he caught the clerk sleeping on the job, and subsequently fired him. The clerk filed an Equal Employment Opportunity complaint claiming his termination was based on disability discrimination. The agency dismissed this complaint, but on appeal the EEOC partially reversed this decision.

While upholding the agency’s dismissals of claims based upon the creation of a hostile work environment and the failure to provide reasonable accommodations, the commission found that the termination was motivated by unlawful discrimination based upon the fact that the agency failed to articulate a legitimate non-discriminatory reason for the termination during the EEOC investigation. He was awarded back pay plus interest and benefits from the time he was terminated up to when his temporary appointment was supposed to expire, and the case was remanded back to the agency for further investigation on the damages issues.

Federal employees who believe they have been subjected to disability discrimination should immediately contact a federal employment law attorney. They have 45 days after an adverse action occurred or a request for reasonable accommodations was denied to contact an EEO counselor.

© 2016 Mathew B. Tully, Esq.. All rights reserved. This article may not be reproduced without express written consent from Mathew B. Tully, Esq..

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About the Author

Mathew B. Tully is a founding partner of Tully Rinckey PLLC. He concentrates his practice on representing federal government employees and military personnel and can be reached at mtully@fedattorney.com. To schedule a meeting with one of the firm’s federal employment law attorneys call 202-787-1900. The information in this column is not intended as legal advice.

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  1. Robyn says:

    I have had the pleasure of working with individuals in my agency who are excellent employees and are categorized as disabled. Thankfully, the government has ENABLED them to share their talents with those who work with them through employment. The individual’s ABILITIES are what make them excellent employees. Rather than focusing on the limitations the individual has, their strengths should be brought forward. Any needed/required special accommodations that assist them in performing their jobs benefits everybody involved, on all levels of management.

  2. Jenny Foster says:

    I think this article is important in keeping the topic of the treatment of disabled employees in the workforce visible and accountable. It appears to be positive news to see that hiring those with qualified disabilities is up, however, it is unfortunate to see that there are clearly still issues with appraisals, harassment, and reasonable accommodation requests. I do not believe that workplace complaints and EEOC claims will ever be eliminated, however this article reminds us that our goal should always be to reduce employee complaints, and to mitigate and prevent complaints whenever possible through best employee relations practices. While I see the office culture changing in both the public and private sector for the better, it is difficult for most employees to “hide” their disabilities over time (even those that are not outwardly visible) for various reasons. As we are all human, it remains possible for supervisor or managers to hesitate in promoting certain disabled employees should there be any lack of confidence in their abilities or founded or unfounded concerns about attendance. As someone who finally “came clean” and for the first time disclosed my qualified disabilities after 20+ years in the private sector, I have a more acute understanding of how difficult it can be to fully “hide” my medical challenges in the hopes that no one will view or treat me differently. I don’t believe that “my” issues belong to my employer, but I certainly hope that others like myself are truly evaluated based on our work output, metrics, customer service, and performance standards. I don’t want any special treatment, but I’d prefer my disability be an invisible non-factor in employment-related transactions. Thank you, Mr. Rinckey, for reminding us that claims are up in some key areas.

  3. Washington Faith says:

    I agree with the conclusion of the writer!…The federal government is getting better at hiring individuals with disabilities, however, they still are not treated fairly.  I think that people with disabilities should be afforded the same opportunities as ppl without disabilities….Normally, people with disabilities will stay at the same grade for years!…They dont have a chance for promotion potential and that is extremely unfair.  Also, they should be granted reasonable accomodation to better perform their job!…sometimes, it takes forever to get the proper tools needed to perform their daily job…In conclusion, yes, the government is better at hiring disabled people, however, they need to treat them fairly, and offer them the same opportunities.

  4. NoDonkey says:

    Geez, in the DoD these days it’s hard to find people who aren’t “disabled”.  They may run marathons, but they are “disabled”. 

  5. LongTimeFed says:

    Oh I’m sure they know, at least here, because I’ve told them. They just figure, who’s going to make them?

  6. LongTimeFed says:

    Do you have a union? Join today and see your steward.

  7. dogdooisbetterthanyou says:

    This article refers to ‘federal workers’ like a generic drug.  Check out the discrimination by the Postal Service against its injured and disabled workers and the number go sky high into the tens of thousands!  Granted there are some ‘fakers’ out there, but the majority are legitimate and the Postal Service’s National Reassessment Pogrom, oops, I mean Program, attempted to root out ANY and ALL injured/disabled workers.  That is currently being argued in the class action suits against the Postal Service and the NRP, most notably the one begun by Sandra McConnell.

    Yes, there are some employees, to the detriment of the legitimate claims, who abuse and pimp the system, but many, many real injured/disabled employees are/have been unjustifiably discriminated against through the NRP.

  8. Vicarz says:

    What a load – there is no increase in actual disabled people, but a metric ton of employees using alleged disabilities to cover their conduct and performance problems. The program are a great idea, but with people like this Complainant’s advocate and strip-mall-doctors who will sign anything for $40, the programs are abused. 

  9. Monty says:

    Nonsense all of it. Everyone has some issue or another so they think. Listen, its simple. We should focus on who can best perform in the position. If you have a disability that detracts from the mission, that is a negative on keeping you. The practice of picking someone because of some reason other than competence, is discrimination. We need a 6 month temporary phase. If u are the best for the position, regardless of all the buzz words (disabled, gay, sex, race), you get it. The practice of picking one human being over another otherwise is disgusting. How about merit? Seriously, if u have a disability, you should have to compete and that may mean extra to overcome your disability. If you look throughout your community, a huge portion of people have to overcome their surroundings, education levels, learning deficiencies, environment, and other issues I won’t go into. You can’t give everyone everything. It discriminates against others. Fair is fair…period.

    • HawkeyeH says:

      Monty, There is so much you do not know about the program.  Being hired under a schedule
      “A” appointment is just the start. The person still has to complete 700 hours temp appointment to prove they can do the job.  Then there is the agency probationary period which is usually a year.  If the person does not successfully complete these probationary periods they are out of a job.  Once they have completed probation they still have to perform or they lose their job.  No one is giving a person anything.  They have to prove they can do it.  There is more scrutiny for people hired under a schedule “A” appointment then a VRA appointment. 

      People with disabilities have to deal with discrimination every day.  Not all forms of discrimination are illegal.  When a veteran is given 5 points when they apply for a Government job is a type of legal discrimination.  A person with a disability does not want anything for free, they just want to be able to compete and make a usefully contribution to sociality.

    • deafieFed says:

      HawkeyeH is right.  I am close (not personally) to some folks involved with the hiring process and their answer is always this ” if they are qualified” they will be hired.  Then they have to go through the process like anyone else.   Doesn’t sound like ‘non-competitive’ to me, but at least the folks with disabilities are given a chance (at my agency, anyway!)

  10. deafieFed says:

    oops wasn’t done… Agencies are using the words “Individuals with Disabilities (IWD).  Or People with Disabilities.   Just saying. 

  11. FedWife says:

    My husband was hired in 2010 after the Executive Order through Schedule A and, and he has nothing to complain about.  Sure, the job doesn’t have any promotion potential, but now that he has been told that he will be passing his 2 year probation and converting to the competitive service, he is going to use his experience to move up the ranks.  His managers have changed several times, and each one of them has been open to learning about what kind of accomodation he needs, and how they can better work with others like him in the future.  The agency that he works for began to roll out videophones, which for him is a godsend compared to using the old IP relay system.

  12. Arrive_1 says:

    Funny how commenters here complain about the disabled not being qualified, filing charges frivolously, and the EEO’s enforcement of laws against discrimination.  What makes us all so sure we are the best, the brightest, the most deserving?  Most of the so-called “stars” I see in government employment are simply really good at kissing up but are technically deficient.  Don’t toot your horn unless you can back it up.  And with your crappy attitudes toward others, I doubt you can back up being a team player at all.

  13. Recruiter says:

    This is baloney.  Our agency is getting better at hiring non-competitive persons with disabilities and other non-competitive candidates because our ability to hire the right qualified people was greatly crippled when FCIP was removed and OPM took three years to get its Pathways replacement in place.   

    • HawkeyeH says:

      The article has merit and you are only talking about your agency.  With the program being in place for almost forty year I would hope your agency is getting better at it.  Having been a Special Emphasis Program Manager myself and having been with five different agencies in thirty years I can tell you that things are not working and needs improvement.

    • Zzdeog says:

      You may hire people with disabilities but what happens to them after you get that disability “number”?

      • deafieFed says:

        I like to hope that they all stand up for themselves if discriminated so that every agency, every supervisor at all levels, know that it will not be tolerated anymore.     All supervisors/managers who have issues with IWD need to turn a corner and have a better attitude, keep an open mind, etc… they just may have found their “rising star”.

        • Zzdeog says:

          I finally did stand up but at the cost of co workers talking with me when no one can see because they don’t want to be harassed because they talk with me, it has cost me over $30,000 of my TSP savings in lawyer fees, impact on my health and my family, medical costs that are a result of the harassment and lack of reasonable accommodations, etc.  I understand how difficult it is to stand up but it needs to start somewhere with someone.  The govt just makes the laws…they don’t abide by them.

  14. LongTimeFed says:

    In my agency, if you’re an employee with a disability, forget about promotions or meaningful assignments. It’s warehousing to the Nth degree.

    • Disabled and FED up says:

      Same is true in my agency.  I got in because they didn’t know I was disabled, but once I had to miss some days for treatment and then surgery, I was shuffled off into a corner and labeled “untouchable.”  My boss actually told me that she’d prefer I quit so they could get someone else in here.  Makes me feel all warm and fuzzy!

    • HawkeyeH says:

      The Rehabilitation Act of 1973 is for the hiring, retention and advancement of people with disabilities.  Most managers/supervisors do not understand the program, what a reasonable accommodation is and are limited in their ability to envision what a person can do or how a job could be done differently.

      There just is not a willingness to understand the program because they cannot relate to it.  You will find that there is greater willingness to hire veterans, because most managers/supervisors can relate to the program. 

      I believe most managers/supervisors don’t even know about the advancement part of the law and their agencies don’t understand it either. 

      There is nothing wrong with this program (if management would use it) and people with disabilities are not being given an unfair advantage.  It is no different than using the VRA  to hire a person.

    • Hoosieriusb says:

      Hiring persons with disabilities is great – there are mechanisms to do so – unfortunately, there are no mechanisms that allow persons with disabilities to advance or be promoted.  In fact, many languish at the same level for years or decades even though they should be advanced.  I’m surprised that Mr. Tully did not mention the class action lawsuit that persons with disabilities are pursuing at the Social Security Administration:  http://www.ssadisabilityclassa

  15. steve5656546346 says:

    The author seems to accept the common myth that the number of EEO complaints filed indicates the amount of illegal discrimination in an agency:  if so, EEOC has been consistently among the most discriminatory.  That means that either they are not fit to administer the EEO law, or the system is frequently gamed.

    • sick and tired says:

      I agree.  The EEO forum is perfect for employees as well.  it is a free service and they can take it as far as they want to. 

      I think this article, and most of his are, is really more about selling his services as a lawyer.  Go back and read them, he is constantly driving home the point that the Federal Government is highly discriminatory in their processes.  Must have worked out well for him, he is medically retired from DOJ and yet is still leading a productive life suing the rotten old Feds.

  16. Raceway says:

    One of the problems with the EEO process inside the governemnt is that often, individuals will file because it’s a no lose proposition for them to do so. There are no punitive actions for frivolous claims and often aencies will just cave to the demands rather than go the distance to prove that a frivolus claim is just that.

    Seen it happen over and over. 

    • Tom Webb says:

      In many instances, the EEO process is abused and is an easy way to get leverage for promotions and other favorable treatment.
      It does not cost the complainant anything (zero, zip, nada).
      The complainant is not guaranteed to necessarily “win”, but they’re likely to get “something” in the end.
      The complaint itself is a nuisance for managers.
      Even if nothing is eventually “won”, the complainant is insulated during and after the process for “retaliation”. 

      • Zzdeog says:

        Not true.  You don’t know the facts.  An employee goes through a lot before they decide to file and they actually need to show that they have been discriminated against for a case to move beyond eeo.  The only thing that employees that file an eeo complaint are sure to get is more of the same/retaliation.  Does this sound like what you think happens when someone files an eeo complaint?  NOT…Have you lived through one? You are considered guilty until you can prove that you have been discriminated against.

        • JG4 says:

          Actually the accused is guilty until proven innocent, it took 9 years to clear my name of 50 plus allegations, when the case finally made it to district court, it was tossed out for lack of merit… but for nine years I had to hear “you have an EEO filed against you” and as such it hampered my advancement during those 9 years..

          Those are the facts as I experienced them!

          • LongTimeFed says:

            If you have 50+ allegations, there is something seriously wrong with your management style.

          • GiGe says:

            Good point.

          • JG4 says:

            uh no it was more along the lines of a shotgun approach as a defense to corrective action, someone that wanted to game the system and lost…. every manager or supervisor that this person worked with was named in the complaint. and again it was tossed…

          • Zzdeog says:

            The brief statement of what happened to you is very rare.  Were you in management? And if you were did a govt lawyer represent you? 

          • JG4 says:

            I was a supervisor at the time and yes the DOJ represented all of us, but they had to interview us first.
            Luckily My DM didn’t settle to “save money” and let the case go forward as in his words “you were doing your job”… the complainant couldn’t find anyone in the office to verify her claims..

          • VA Nurse says:

            I work at the Salisbury VAMC and your case is NOT typical of what takes place at this VA.  We have incompetent nursing managers, HR/LR specialists, and EEO personnel that engage in retaliation and harassment to quiet any employee who files EEO complaints.  The work environment is hostile and unhealthy for good employees and the guilty parties are NEVER reprimanded. When any action is taken against a manager, it usually means a promotion to another area.  They merely recycle poor supervisors, especially in the nursing department.  One nursing manager has been at this VA for over 30 years in which she was removed from her nurse manager position for 2 years only to return as the Asst. Chief Nurse over the same area!  She has been rewarded for her hostile behaviors and for breaking EEO laws.  It is a sad situation for all involved in Salisbury…

          • Zzdeog says:

            Your situation is very rare in comparison.

      • GiGe says:

        I don’t think we are on same planet? Been in gov 4ever. Most that file EEO complaints are stuffed in a corner and tormented.

    • deafieFed says:

      I don’t know about often and others, but it happened to me and it was very real.  I did not ask to be treated that way, in fact I was one of the best workers. Ultimately I filed and settled out of court so we all can move on.

      • Zzdeog says:

        I hope that this happened years ago because I filed a eeo complaint two years ago and it settled but never ended…the retaliation is horrible and is not how I thought that I would finish my career (or lack of).  For me it will never be “Settled”

        • HawkeyeH says:

          It is sad to say, but this is why most people do not file an
          EEO complaint. 

          • Zzdeog says:

            I believed in the system “eeo” and shocked even more by the politics and corruption of the good old boy network. 

        • deafieFed says:

          Retaliation/tort is damaging in terms of mental and physical health especially long term. The customers (warfighters, aircraft maintainers, etc) also suffer (workload, sick hours, lack of productivity, time spent meeting with EEO, etc).  

          Hopefully part of the settlement was for you to get a lateral move/reassignment. Management must do all it can to separate the offender(s) and affected employees, otherwise it will never really end….leading to more long-term health problems! 

          Being reassigned was the best thing, it led to better opportunities (which is why I settled).  I did not want opportunity to just be given to me – i wanted to earn it too.  So

          • deafieFed says:

            My situation was in 2000, but I can’t (not won’t) forget.   I still have anxiety problems.  Also, they’ll tell you you can’t win, but that’s not true, especially if you have supporting evidence.  I could have went all the way but it would have taken longer and I dwas tired of fighting. Then they hope you give up!

            Years later and new management…my agency has improved in so many ways. It’s so much better.   Good luck, hang in there!

          • Zzdeog says:

            I also would love to be able to forget this experience that has been going on for almost 7 years.  I have been in counseling for months to try to get back who I was prior to the harrassment and to try to lessen the work related anxiety. When management bullies it is very obvious but they do it anyway because the can and nothing happens to them.  I don’t understand the mentality and have come to terms with the fact that I will never understand it.  I spent many months/years trying to think of what I did but I learned in counseling that the common link with employees that are bullied is that they take pride in their work and have strong ethics.    

    • Zzdeog says:

      This is not true and unless you have lived through a eeo complaint then you need to get some facts.  This is not a cake walk nor is it a given. If the government itself will not abide to their own laws then who should?  The discussion should be why don’t federal managers follow the laws instead of thinking “I can do what I want because it won’t have an impact on my career, wages, life, family etc” and why aren’t these managers fired when they openly discriminate?  I hope to live long enough to see these employees be held accountable for their actions.

      • deafieFed says:

        The supervisor that gave me trouble was never held accountable.  It was up to me to forgive and move on, and thankfully, I was reassigned.

    • GiGe says:

      Seen it happen the other way too many times to count. Government TORMENTS or delays the process when VALID complaints have been filed. Eventually, the complainant just gives up and goes away because the system is designed for the benefit of the government, not the employee. We ALL know that bad managers are protected over and over again and promoted when they get in trouble. Sickening!

      • Zzdeog says:

        This is where the government could save a huge amount of money.  The cost of intentional harassment/discrimination infects the work enviornment costing billions of tax payers money.  It will be difficult to change the mentality of lower level management until the mind set of the highest hiring/selecting official is removed…they hire managers with the same management style and it trickles down from there.  Managers wouldn’t create a hostile work enviornment if it wasn’t allowed and if they didn’t get away with it. Poor management style and huge impact on the government budget.

  17. Guest says:

    I have NO issues with hiring and working with handicapped people…… IF THEY CAN DO THE JOB.  Too many times I have seen a numbers game played ……. musy meet my quota.  It’s a waste to everyone.

    • HawkeyeH says:

      The same thing can be said about hiring vets, etc…

      • deafieFed says:

        FYI, I am deaf we no longer say “handicapped people”. 

        • deafieFed says:

          Oops, was not done and still new to posting process.  Agencies are using the preferred words “Individuals with Disabilities (IWD) or People with Disabilities.  Just saying. 

        • HawkeyeH says:

          It bothers me too, and I find it offensive, when people use the term “handicapped people”.  I think it shows how knowledgeable “Guest” is about the subject.

      • Zzdeog says:

        I bet you feel ok with them going to war so you can have the freedom to write your thoughts.  I have worked with non vets that don’t produce work and I get the feeling that is ok because they aren’t labeled “Vet” or “Disabled”.  They could be labeled “lazy” or “friends of management” or “scammers” or “I got to the level that I wanted” whatever you wnat to call them they are out there in greater numbers and it is acceptable. 

    • Zzdeog says:

      I’m sorry that you feel this way about people with disabilities.  Most of us just want to work like most other employees but we do need to have management open to reasonable accommodations (doing the job differently).  Maybe if you look at it like this…..in the general workplace 20 % of the employees do 80% of the work…disability or no disability.  As we age we are more likely to be considered “disabled” in some way and I would think that if this happens to you then you would like to have your employeer assist you in doing your job so you can continue to earn a pay check until you can retire.

  18. lcmingpt says:

    One thing that really irritates me is the lack of benefits for the family of the disabled in government.  In the private sector, under the ADA, if someone in your family is disabled and you need a reasonable accommodation of adjusting your work schedule to take care of them it has to be provided.  Under the Rehabilitation Act that same requirement does not exist for federal employees.  This could very easily result in the disabled person not being able to enjoy in the benefits of a fulfilling life simply because some federal manager doesn’t want to help.  It can also lead to bankruptcy for the federal worker if something as simple as adjusting a work schedule will not be granted and unpaid time off has to be taken under FMLA.

    • Zzdeog says:

      Only in the government.  The government makes the laws, regulations, policies etc but they are only paper and do not apply to the government….so sad.

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