By Deryn Sumner, March 15, 2017
The Americans With Disabilities Act Amendments Act (ADAAA) became effective on January 1, 2009 and did not apply to cases arising prior to that date. The internet tells me that in 2009, we were aghast at Balloon Boy’s parents for tricking us into thinking a boy was floating away in a giant balloon, wondering how Tareq and Michaele Salahi managed to sneak into a White House State Dinner, and applauding Captain “Sully” Sullenberger for safely landing a plane on the Hudson River.
So, yeah, it’s been a long time since the ADAAA was enacted, but we are now finally seeing substantive decisions applying it from of the EEOC’s Office of Federal Operations. A notable recent decision is Elden R. v. Department of Interior, EEOC Appeal No. 0120122672 (February 24, 2017). The Commission addressed an appeal the complainant filed on June 11, 2012 (while the rest of us were readying for the 2012 Summer Olympics in London, remember those?) and found that his termination in January 2011 was discriminatory because the agency “regarded him” as having a disability.
The agency selected the complainant for a GS-05 Wildlife Refuge Specialist position, which required him to work collateral law enforcement duties. While serving in the military, the complainant suffered neck and back injuries which prevented him from being able to sit on the floor with his legs straight in front of him and reach his fingers beyond his toes. He passed his initial physical examination and the physician concluded he could perform the duties of the job. However, he wasn’t able to successfully complete one part of the Physical Efficiency Battery examination (PEB) that was required in order to attend the Federal Law Enforcement Training Center in Glynco, Georgia. That one part? The sit-and-reach portion.
It was recommended that he be allowed to work out three times a week under the agency’s policy allowing certain employees to use work hours for exercise and try the test again in a few weeks. His requests were denied and after he informed his chain of command about his concerns about meeting the sit-and-reach requirements and requested a waiver, he received notification that the agency was going to terminate him from the job. Notably, during a meeting to discuss the issue prior to his termination, the complainant’s supervisor told him that he was “highly disappointed” that complainant did not reveal his “disability” during his interview for the job.
The complainant filed an EEO complaint (after a brief sojourn to the MSPB where his appeal was dismissed for lack of standing as he was a probationary employee) and alleged that the agency unlawfully perceived him as an individual with a disability when it terminated him. Citing legislative history, the Commission agreed and took this opportunity to provide a nice summary of the Congressional intent behind the expansion of coverage in the ADAAA: “[T]he ADA Amendments Act broadened the application of the ‘regarded as’ prong of the definition of disability. In doing so, Congress rejected court decisions that had required an individual to establish that a covered entity perceived him or her to have an impairment that substantially limited a major life activity. This provision is designed to restore Congress’s intent to allow individuals to establish coverage under the ‘regarded as’ prong by showing that they were treated adversely because of an impairment, without having to establish the covered entity’s beliefs concerning the severity of the impairment” (internal citations omitted).
As for Elden, the Commission found that he met all of the qualifications for the position except the requirement to “sit and reach,” and as such, he was qualified to hold the position. The Commission then turned to whether or not there was a job-related and consistent with business necessity reason for Elden to be able to sit and reach, and found nothing in the record about how being able to reach over one’s toes with legs outstretched related to any job function of a Wildlife Refuge Specialist. Noting that the agency had provided waivers to the “sit and reach” requirement for other individuals in substantially similar positions, the Commission found the termination was discriminatory and awarded relief, including reinstatement and back pay from his termination more than six years prior. Sumner@FELTG.com
[Editor’s Note: It’s decisions like this that on occasion make me think I am just not smart enough to understand how EEOC approaches legal analysis. The Americans with Disabilities Act defines “disability” as “a physical or mental impairment that substantially limits one or more major life activities.” Therefore, in my limited brain capacity, to be found to “regard” someone with a disability, it would seem that we need to find an agency action based on a “limitation on a major life activity.” The agency here acted based on this individual’s inability to sit on the floor with legs outstretched, and then reach with his fingers beyond the tips of his toes. If that action is a “major life activity” for any of you readers out there, you are living a much more exciting life than am I. The fact that an uninformed layperson calls a medical limitation a “disability” does not make it a “disability” under law. I’m just saying … – Wiley]