An often perplexing and frustrating area of the law for federal managers is disability discrimination and reasonable accommodations.
As the law has evolved over the decades, so too has the federal workforce and employees’ medical impairments. More often today, employees – whether veterans suffering from the non-obvious mental impairments associated with post-traumatic stress disorder (PTSD – or an aging population of federal workers plagued with a whole host of physiological maladies – cannot simply be accommodated with wheelchair ramps, ergonomic desk chairs, or adjusted schedules.
With the prevalence of physical and mental impairments in the workplace, it is easy for a federal manager to unknowingly discriminate against a disabled employee by failing to provide a reasonable accommodation.
The Rehabilitation Act of 1973, applicable to the federal sector (similar to the Americans with Disabilities Act in the private sector), requires that federal agencies provide reasonable accommodations to qualified employees or applicants who have physical or mental limitations covered by the Act unless to do so would cause an undue hardship.
The Equal Employment Opportunity Commission’s (EEOC) website contains an excellent repository of materials to help federal managers understand their obligations under the Rehabilitation Act. The EEOC advises, “[i]n general, an accommodation is a change in the work environment or in the way things are customarily done that would enable an individual with a disability to enjoy equal employment opportunities.”
Reasonable accommodations may take many forms, to include: (1) acquiring or modifying equipment or devices; (2) job restructuring; (3) part-time or modified work schedules; (4) reassignment to a vacant position; (5) adjusting or modifying tests, training materials or employer policies; (6) providing readers or interpreters, or software that allows dictation-to-output; and (7) otherwise making the workplace more readily accessible to and usable by persons with disabilities. This article explores just one of the many types of accommodations – job restructuring.
The EEOC explains the term “job restructuring” as a type of reasonable accommodation that “includes modifications such as: reallocating or redistributing marginal job functions that an employee is unable to perform because of a disability; and altering when and/or how a function, essential or marginal, is performed.”
Essential functions are generally described as the basic job duties that agencies may require their employees to perform. It is critical to note at the outset that an employing agency never is required to eliminate, reallocate or redistribute the essential functions of an employee’s job when making a reasonable accommodation.
The EEOC recently affirmed this long-standing rule in Dwayne F. v. Dep’t of the Navy, 2016 EEOPUB LEXIS 693, 116 F.E.O.R. 217 (2016) (holding that the Navy did not violate the Rehabilitation Act when it refused to remove painting as one of the duties required of a painter whose medical condition prevented him from painting ships, because painting was an essential function of that job position).
Of course, an agency may reallocate essential functions if it so chooses. However, such action is usually not desirable because it will hinder an agency’s removal of an employee who is unable to perform the actual job for which he or she was hired.
An employer’s position that an employee is unable to perform the essential functions of a job is the cornerstone argument in defending against a failure to accommodate claim.
Even though the employee alleging discrimination retains the ultimate burden of proving he or she can perform the essential functions of his or her job, with or without accommodation, as the Seventh Circuit explained in Benson v. Nw. Airlines, 62 F.3d 1108, 1113 (8th Cir. 1995), “much of the information which determines those essential functions lies uniquely with the employer.” It is often difficult to determine whether a function of a particular job is essential as opposed to non-essential/marginal.
Essential Job Functions
So how does Management ascertain what the “essential” functions of the job actually are?
The EEOC has formulated a list of factors that agencies should consider in determining whether job functions are essential: (1) whether the position at issue exists specifically to perform that particular function; (2) “the number of other employees available to perform the function or among whom the performance of the function can be distributed;” and (3) “the degree of expertise of skill required to perform the function.”
The EEOC will consider an agency’s Position Description (PD) for a particular job, as well as how that job was advertised, as evidence of essential functions.
The EEOC understands that the agency’s judgment as to which functions are essential is also pertinent to the inquiry. Moreover, the EEOC will consider the following as additional evidence of whether a job function is essential: (1) “the actual work experience of present or past employees in the job”; (2) the amount of time an employee spends performing the function in question; (3) the consequences of not requiring an employee to perform a function; and (4) the terms of any collective bargaining agreement, if applicable.
These factors are set forth in 29 C.F.R. § 1630.2(n)(3)(iv), 1630.2(n)(3)(vi), 1630.2(n)(3)(vii) (1994). George Bounds, the author of Americans with Disabilities: Practice and Compliance Manual, articulated it well when he said that the overall inquiry into essentiality of job functions really hinges on “whether the employer actually requires employees in the position to perform the functions that the employer asserts are essential.”
It is imperative that, when defending against a reasonable accommodation case that involves a failure to restructure non-essential functions of a job, an agency not argue that functions of a job are essential if the agency never actually required the employee to perform those functions in the first instance.
In Adams v. Dep’t of Defense, Defense Logistics Agency, 1989 EEOPUB LEXIS 1468 (Nov. 28, 1989), a mental disability discrimination case, the EEOC examined the situation where a disabled employee had a PD identifying certain “critical elements,” but where not all employees with that same PD (Supply Clerks) were actually assigned duties in all four stated critical elements of the job position.
The administrative judge in Adams emphasized the lack of evidence that the Defense Logistics Agency ever considered structuring the complainant’s job to include some, but not all, of the four critical elements.
While the case was not ultimately decided on the merits of the discrimination claim, Adams reveals that, even though an employee’s PD may identify four critical or core elements of the job, a judge may find that one or more of those core elements are not truly “essential” functions of the job.
The takeaway from Adams is that, if Management has always only required the employee to perform some of the core elements listed on a PD, an agency may have to restructure the employee’s job to accommodate a disability by removing any core element that the employee does not actually perform.
In short, a decision to grant a reasonable accommodation in the form of job restructuring, or reallocating non-essential duties of a job, must be made under the unique facts and circumstances of each individual case. Agencies must pay close attention to the disabled employee’s PD, the duties actually required to be performed by the employee, and whether other employees are available to perform the non-essential job functions that the disabled employee is unable to perform.
Job Restructuring and Disabled Employees
When restructuring a disabled employee’s job, it is also important to be mindful of the employee’s actual medical limitations vis-à-vis the essential and non-essential functions of the job.
An employee may be able to perform some essential functions but not others. Conversely, the employee may be able to perform certain limited non-essential functions.
While no precise formula exists for determining how many functions of his or her job a disabled person must be able to perform, in Dudley v. U.S Postal Serv., 1993 EEOPUB LEXIS 1476, 93 F.E.O.R. 3247 (1993), the Commission declared that an employee’s inability to perform at least fifty percent (50%) of the essential functions of his job position obviated job restructuring as a reasonable accommodation. That seems far more generous than the well-established rule that an agency need not eliminate, reallocate or redistribute any essential functions of a job when attempting to provide a reasonable accommodation.
Regardless of how an employer restructures a job for a disabled employee, one thing is clear – the employer’s good faith accommodation attempts are key to avoiding monetary liability in the event a disability discrimination allegation is substantiated.
In, Abeijon v. Dep’t of Homeland Security, 2012 EEOPUB LEXIS 2341 (Aug. 8, 2012), a case examining all of these issues, the Commission held that an administrative judge erred in finding that the Department of Homeland Security (DHS) reasonably accommodated a Customs and Border Protection (CBP) Officer when it restructured some of the officer’s job functions.
The CBP officer had a back impairment (herniated disc) and was significantly limited in the type of work he could do. DHS attempted to provide a reasonable accommodation by restructuring the officer’s day-to-day activities by removing job duties that required him to bend, kneel, climb, stand by prolonged periods, or lift more than ten pounds.
However, the Commission found that DHS failed to provide reasonable accommodation in the form of light duty when it continued to require him to carry a firearm and expected him to use necessary force to defend lives. Light duty, on the other hand, would have entailed the officer turning in his weapon.
The Commission in Abeijon, 2012 EEOPUB LEXIS 2341, *27, explained, “[i]f the function of carrying a firearm and protecting the lives of others was not essential (i.e., it could have been modified), the Agency should have eliminated it from the restructured job. If the function was essential, Complainant was unqualified for the position and should have been transferred to a light duty position.”
Ultimately, the Commission held that DHS failed to reasonably accommodate the CBP officer because the restructuring did not meet the employee’s medical restrictions of avoiding physical altercations and being placed in harm’s way.
Notwithstanding, because DHS attempted to accommodate in good faith by restructuring other aspects of the officer’s job, the agency escaped liability for compensatory damages. Instead, the Commission ordered DHS to remedy the denial of the officer’s light duty request, which in practice meant placing him on light duty.
These cases highlight the need for managers to intimately know what their employees’ PDs identify as being critical elements, what functions the employee actually performs as routine elements of his or her job, and the unique aspects of a disabled employee’s medical condition.
The federal manager must ascertain how to best accommodate an employee’s physical or mental impairment based on what is required of the employee to perform the job in question. Before resorting to a less favorable accommodation, such as telework, or rushing into a draconian decision to reassign the employee, job restructuring provides agencies with constructive options that promote both the goal of employee productivity in the workplace as well as compliance with the Rehabilitation Act of 1973.
Jeffrey J. Lorek currently serves as the Deputy Chief, Labor Relations Branch, at the U.S. Air Force Legal Operations Agency in the Washington, D.C. area. He has published a number of articles on various labor and employment law topics. He holds a commission at the rank of Major in the Air Force. Major Lorek has a B.S. in Finance from The Pennsylvania State University, a J.D. from The Cleveland-Marshall College of Law, Cleveland State University, and an LL.M. in labor law from The George Washington University Law School. The views expressed in this article are solely those of the author, and do not represent the views of the Department of Defense, the U.S. Air Force, or the Judge Advocate General’s Corps.