By Meghan Droste, October 14, 2020
Last month, we looked at Cecille W. v. U.S. Postal Service, in which the Commission held the agency failed to accommodate the complainant because it looked only to the position description, and did not conduct an individualized assessment, when determining the essential functions of the complainant’s position. We have a slightly different spin this month, but the same underlying message: Agencies have an obligation to accommodate employees with disabilities when doing so is not an undue hardship. I recommend you keep that goal in mind as you evaluate requests for accommodations.
In Frederick A. v. Department of Defense, EEOC App. No. 2019002604 (Aug. 18, 2020), the complainant had limited vision due to a damaged retina in one eye, a cataract in the other eye, and glaucoma. When the complainant applied for his position as a Transportation Assistant, the vacancy announcement described the position as sedentary. The complainant passed a physical exam before entering on duty and successfully performed the duties of his position for one year. At that time, the agency directed him to obtain a driver’s license so that he could operate a forklift.
The complainant submitted a request for accommodations but then withdrew it because he did not believe operating a forklift was an essential function of his position — in part because of his position description, and in part because in one year he had never needed to as part of performing his duties. Although he withdrew his request, the complainant submitted medical documentation explaining his vision limitations. In his response, his supervisor asked him what accommodations would allow him to operate a forklift; the complainant again stated that he did not believe doing so was an essential function on his position.
At this point, you might assume that everyone moved on from what was obviously confusion about what the complainant did on a daily basis. However, the complainant’s supervisor took a different approach, rewriting the position description to remove the word “sedentary,” and specifically requiring the complainant to operate a forklift, something he had not needed to do at all during his first year on the job.
As we learned last month, the position description cannot be the only step in the analysis to determine the essential functions of a position. And while I often appreciate creativity in trying to address an issue, rewriting the position description to include functions that are not actually essential is definitely not going to help an agency. In this case, the administrative judge found that the agency failed to accommodate the complainant and the Commission upheld that decision.
Remember, Congress intended for the federal government to be a model employer when it comes to accommodating employees. Failing to determine the actual essential functions of position—or trying to alter the record when it doesn’t support your view of essential functions—is not what a model employer should do. Droste@FELTG.com