By Meghan Droste, December 15, 2020
We’ve made it, readers. It’s finally the end of 2020 and that seems like as good a time as any to wrap up our ongoing look at reasonable accommodation issues in this space. I’m sure we’ll touch on them again at some point in 2021, but for now let’s look at one more area in which I see agencies struggle when it comes to handling requests for accommodations: searching for reassignments.
As a complainant’s representative, I often get involved in reasonable accommodation issues for my clients before litigation. Obviously the preference is to find a way to accommodate a client’s needs in the current position. Unfortunately, there are times when this isn’t possible.
At that point, we move to discussing a reassignment. When this happens, I have found agencies often make one of two mistakes. The first is to take far too long in searching for a reassignment. I know, and explain to my clients, that these things don’t happen overnight. But too often it seems that agencies move very slowly in searching for vacant positions, waiting months before offering a potential position.
As I have mentioned before, the answer to the question of how long is too long to provide an accommodation is very fact-specific, so if your search starts to drag on, you should be sure you have clear documentation of all of the steps you have taken to locate a position.
The other common mistake is that agencies improperly limit the search for a position. I have seen agencies limit the search to only positions at the same grade level, forgetting that if none are available, the agency must search for a position at a lower grade. I have also seen agencies only search for positions in a specific geographic area. As the Commission emphasized in a recent decision, an agency’s obligation “to offer reassignment is not limited to vacancies within a particular department, facility, or geographical area.” See Lisa C. v. U.S. Postal Serv., EEOC App. No. 2019005689 (Nov. 16, 2020). This means that “absent undue hardship, the agency must conduct an agency-wide search for vacant, funded positions that the employee can perform with or without reasonable accommodation.” See id. While it may make sense to start the search in the location in which the employee already works, that should not be the only search or the end of the search.
Finally, if an employee identifies a potential position for reassignment and the agency rejects it, be sure you can articulate a reason why. In my own work, I have seen agencies outright reject a potential option but give no reason why. In the Lisa C. case, the complainant identified a position at another facility and it appears the agency made no effort to consider it. As a result, the Commission found the agency failed to accommodate the complainant.
Good luck out there and happy new year! Droste@FELTG.com