By Meghan Droste, November 17, 2020
For the past few months, we’ve been discussing reasonable accommodation issues in this space. Why? Well, they’re interesting. Also, because I anticipate you will probably see more requests whenever your agency starts to move back to having employees work in the office rather than at home. (Of course, with the recent increases in cases across the country, that might not be for a few more months at least.) If you do receive more accommodation requests, that may also lead to an increase in the number of EEO complaints alleging a failure to accommodate.
Agencies can, and frequently do, run into trouble when determining whether to accept or dismiss any type of EEO complaint. Reasonable accommodation issues present their own challenges, such as when an agency improperly dismisses a complaint for untimely EEO contact, forgetting to take into account that a failure to accommodate can be a continuing violation. (For more on that, check out my Tips from the Other Side from April 2018.) But they can also be mishandled in ways that apply more broadly to other complaints. These mistakes are unfortunately common but can be voided easily.
For example, at the acceptance or dismissal stage, an agency should not consider the merits of the claim. Does it seem like the agency has an airtight defense? It doesn’t matter. The only question is whether, assuming all facts are true as alleged, the complaint could state a claim for relief. If it can, the agency should accept it.
What does this look like in the failure to accommodate context? It could be considering the agency’s reasons for not providing an accommodation. It could also be looking at the agency’s efforts to provide an alternative accommodation and finding them sufficient. For example, in West v. National Archives & Records Administration, EEOC App. No. 01A43235 (Sept. 13, 2004), the agency dismissed the complaint for failure to state a claim. The agency’s reason for the dismissal was that the complainant did not suffer an actionable harm because the agency had attempted to place the complainant in a position that would accommodate her disability. As a result, the agency found there was no harm that could be remedied. The Commission reversed, finding that the consideration of the agency’s response to the complainant’s request for accommodations went to the merits of the claim.
Agencies should only dismiss a complaint for failure to state a claim if there is no possibility that the complaint articulates a harm for which the EEOC could order a remedy. Although I’m sure it’s possible that a claim alleging a failure to accommodate could meet this standard, I think it will be unlikely in most circumstances. If you find yourself inclined to dismiss a failure to accommodate claim for this reason, I recommend you take a step back and make sure that you aren’t doing so simply because it appears that the agency did try to provide an accommodation or had a good reason for not doing so. Droste@FELTG.com