By Meghan Droste, April 18, 2018
I just returned from a three-day FELTG training program with a fantastic group of EEO counselors and officers at an agency in Atlanta. The course focused on various types of EEO writing, including acceptance and dismissal letters. During the class we had a great discussion about timeliness and when it is ok to dismiss a claim as untimely. Although all of my students seemed to be on top of the various intricacies of determining timeliness, one area in which I have seen confusion is the timeliness of claims regarding the denial of reasonable accommodations. Too often agencies improperly dismiss reasonable accommodation claims as untimely because they fail to consider the ongoing nature of a need for an accommodation.
In many federal courts, the denial of an accommodation is a discrete act—it happens on one specific day and the clock starts ticking as soon as the employer notifies the employee of the denial. The Commission takes a different approach. In its Compliance Manual, the Commission explains that “because an employer has an ongoing obligation to provide a reasonable accommodation, failure to provide such accommodation constitutes a violation each time the employee needs it.” See EEOC Compliance Manual, Section 2, “Threshold Issues,” EEOC Notice 915.003 (July 21, 2005). As a denial of an accommodation is a recurring violation, the Commission has repeatedly reversed dismissals of claims when agencies have treated the specific denials as discrete acts.
An employee does not need to request an accommodation every day or every time the accommodation is needed to establish a continuing violation. It is enough for the employee to allege an ongoing need for the accommodation that continues after the denial. For example, in
Hunter v. Social Security Administration, the complainant requested the agency purchase a space heater as an accommodation after it removed her personal heater because it was not compliant with the agency’s electrical requirements. See EEOC App. No. 0720070053 (February 16, 2012). The agency denied the request, but the complainant continued to need the heater to address the symptoms of multiple conditions. The agency then dismissed the failure to accommodate claim as untimely because the complainant contacted a counselor more than 45 days after the agency denied the request. The Commission reversed the agency’s dismissal, finding that because the complainant expressed an ongoing need for the heater to the EEO counselor, there was sufficient information in the record to establish a potential continuing violation.
As I reminded my students this week, no one wants to have a case remanded. It doesn’t look good for the agency, it can be a waste of resources, and it negatively impacts the complainant who has to wait even longer for a decision on the merits of her claim. When reviewing formal complaints and drafting acceptance letters, be sure to keep in mind the ongoing nature of requests for accommodation. If you want more on this join FELTG in Washington, DC May 8-10 for the class Writing for the Win: Legal Writing in Federal Sector EEO Cases. Droste@FELTG.com