EEOC REAFFIRMS RIGHT TO ACCOMMODATION REASSIGNMENTS
It seems like every day we check this Administration has taken away one employee right after another. So it was comforting to see the new EEOC decision reconfirming a disabled employee’s reasonable accommodation right to a reassignment if s/he can no longer perform the duties of his permanent position. The Commission outright stated, “As Complainant could not be accommodated in his current position, we find that the Agency, absent undue hardship, was obligated to consider reassigning him to a different position, consistent with the Commission’s regulations noted above.” When the agency did not so in this case,…
the Commission wrote, “The burden now shifts to the Agency to provide case-specific evidence proving that providing reasonable accommodation would cause an undue hardship in the particular circumstances.” It then assessed the agency’s evidence against five factors, namely,
(1) the nature and cost of the accommodation needed;
(2) the overall financial resources of the facility making the reasonable accommodation; the number of persons employed at this facility; the effect on expenses and resources of the facility;
(3) the overall financial resources, size, number of employees, and type and location of facilities of the employer;
(4) the type of operation of the employer, including the structure and functions of the workforce, the geographic separateness, and the administrative or fiscal relationship of the facility involved in making the accommodation to the employer; and
(5) the impact of the accommodation on the operation of the facility.
When the agency failed to present any decent argument or evidence addressing those criteria, EEOC found that the employee established that he was denied reasonable accommodation for his disability as alleged.
As a result it ordered the agency to do the following:
- The Agency shall immediately identify all vacant, funded positions or assignments with equivalent pay and status to Complainant’s Mail Handler position and determine, with Complainant’s input and per the requirements of the Rehabilitation Act, which of these positions he is able to perform, with or without accommodation. If such a vacant, funded position is identified, Complainant shall be placed in the position.
2. The Agency shall restore any leave used by Complainant due to the Agency’s failure to provide him with an effective reasonable accommodation as of April 28, 2016.
3. The Agency shall conduct a supplemental investigation on compensatory damages, including providing Complainant an opportunity to submit evidence of pecuniary and non-pecuniary damages. Thereafter, within ninety (90) calendar days of the date this decision is issued, the Agency shall determine the amount of compensatory damages to be awarded.
Check out Kristofer E., V. Megan J. Brennan, Postmaster General, EEOC No. 0120170557 (2017) for details. It provides a good case law roadmap for making or assessing a reasonable accommodation reassignment demand.