By Deryn Sumner, June 14, 2017

Section 102 of the Civil Rights Act of 1991 allows for the agency to escape liability for compensatory damages where the agency failed to accommodate an employee’s disability, if the agency can demonstrate it made a good faith effort to accommodate the complainant.  Such determinations are factually-based, but can be an effective tool in settlement negotiations if the agency can demonstrate that it attempted to accommodate the employee, even if those efforts were ultimately not successful.

However, many times the Commission will hold that an agency can’t make such a showing.  For example, failing to engage in the interactive process and sending an employee for an unlawful fitness-for-duty examination means you can’t raise a good faith defense, see Arnold C. v. USPS, EEOC Appeal No. 0120093856 (November 3, 2015), removing the complainant from employment instead of accommodating her kills a good faith defense, see Geraldine B. v. Veterans Affairs, EEOC Appeal No. 0120090181 (October 13, 2015), and not responding to a complainant’s emails requesting an accommodation certainly prevents an agency from arguing that it acted in good faith, see Complainant v. Homeland Security, EEOC Appeal No. 0120132360 (July 9, 2015).

Let’s explore a recent decision from EEOC’s Office of Federal Operations addressing this defense.

In Joi J. v. Veterans Affairs, EEOC Appeal No. 0120150921 (March 3, 2017), the Commission found that the agency failed to provide an accommodation to complainant by not allowing her to be exempt from on-call duties in her position as a Certified Registered Nurse Anesthetist.  The Commission found it persuasive that the agency could not establish how allowing this accommodation would have caused an undue hardship, noting that the complainant had been exempt for more than two years.  The Commission also found that the agency failed to accommodate the complainant when it did not consider reassignment after concluding that she could not be exempt from her on-call duties.  The agency argued that a search was not necessary because “Complainant produced no evidence that such a search would be fruitful.” The Commission was not convinced, and noted, “because the Agency had access to information about vacant jobs and jobs that were likely to become vacant, the Agency had an obligation to conduct a job search, and it is uncontroverted that it did not do so. Further, more than two months elapsed between the March 20, 2013, submission of Complainant’s reasonable accommodation request and supporting medical documentation and the Agency’s June 7, 2013 denial, and there is no explanation for the delay by the Agency. Accordingly, we do not find that the Agency made prompt ‘good faith’ efforts to reasonably accommodate Complainant. Therefore, the Agency is not insulated from providing Complainant with an appropriate award for compensatory damages based on our finding that it violated the Rehabilitation Act.”

This isn’t to say that the defense can’t be asserted, but the agency must be able to show that it really did attempt, in good faith, to accommodate an employee in order to escape liability for compensatory damages. Sumner@FELTG.com

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