THE ONE-EYE AIR TRAFFIC CONTROLLER APPLICANT GETS 8 YEARS BACK PAY

Back in 2008, Emiko applied for an Air Traffic Controller position and was selected contingent upon a medical exam and background check. When she completed her medical forms, she informed FAA that she had no vision in her left eye, but had learned to compensate for it. She stated she could see as well as anyone with two functioning eyes. The FAA Surgeon did not buy her claim and disqualified her because the physical standards required that anyone in that position have vision in both eyes. That was a huge mistake that likely will cost the agency over a million dollars, but can you see why it was a mistake? After all, excellent vision seems like a perfectly reasonable requirement for an Air Traffic Controller. Here is another hint about what the agency did wrong. 

When Emiko learned of the disqualification she requested an opportunity to demonstrate her abilities to perform the essential functions of the ATC position. After the agency-designated medical official reviewed statements from Complainant’s physicians and conducted medical research, he recommended that Emiko not be given a waiver. Her case was then forwarded to a review panel of six doctors, who sustained the medical disqualification. On April 21, 2009, Complainant was notified that her appeal was denied because the Agency determined that hiring her as an ATC would increase the risk of operational errors and degrade public safety. The Agency also determined that there was no accommodation that would eliminate the risks attributable to Complainant’s medical condition. Got it yet? Two words.

“Individualized assessment.” It is only under very rare circumstances that an agency can deny a job, reassignment, or promotion for a failure to meet physical standards without offering an individual assessment if the applicant protests and asks for a reasonable accommodation. As soon the Emiko asked the agency for a reasonable accommodation, FAA was required to determine whether she could do the job irrespective of its physical standards requiring vision in both eyes. The EEOC Judge found that the Agency “based its decision on only one medical examination, and that it did not conduct an appropriate assessment that closely evaluated Complainant’s prior experiences to determine if she had the ability to safely perform the job in question or, if her past experiences were insufficient, that provided Complainant with an opportunity to demonstrate how she could safely perform the essential functions of the job. Accordingly, the AJ found that the Agency violated the Rehabilitation Act when it failed to demonstrate that Complainant posed a direct threat to safety because it did not conduct an individualized assessment.”

In other words, FAA should have brought Emiko in to discuss the availability of accommodations that would work for her as an individual. If there were none or only ones that created undue hardship, it could have safely denied the job.  Lumping together all people with vision in only one eye violated the law.

Consequently, if an employee in your office is denied a job for a failure to meet physical standards, remember Emiko’s case.  (1) demand that the agency assess the particular employee and his/her disability, (2) have an extended discussion of what accommodations could be made and pay particular attention to how to avoids any undue hardship from the initial suggested accommodation, and (3) if it is a close call, the employee and his/her rep should file an EEO complaint while the agency should extend the offer of employment and test out the accommodation’s effectiveness and hardship.

Because FAA did not do this, it now must give Emiko—

• The job with back pay, plus interest, retroactive to July 2008,
• $119,000 in attorney fees,
• Compensate her for whatever extra federal and state income tax liability she will incur from a large lump sum payment, and
• $150,000 for non-pecuniary compensable damages. (Emiko provided statements from herself, friends, and family members concerning how the Agency’s discrimination affected her physically, emotionally and financially; how it impacted her socially; and how it affected her interest in figure skating, which was a passion for her. She testified that she felt “derailed” and her life became characterized by “professional insecurity and financial instability.” That led to her becoming distant from her family and suffering from personal anxiety. According to the AJ decision, the Agency’s actions “diminished” Complainant’s enjoyment of life. Notice that she did not need to submit medical documentation.)

This is one of those cases that shows the value for the employee of carrying out an EEOC complaint for many years if need be, and the risk for the agency of letting these cases linger unresolved.  For more details about this case, see Emiko S. v. Anthony Foxx, Secretary, Department of Transportation (FAA), EEOC Appeal No. 0120161130 (July 19, 2016).