FEDweek

EEOC Considers Commuting a Major Life Activity

In Complainant v. HUD, EEOC Appeal No. 0720130029 (Feb. 12, 2015), the EEOC affirmed an administrative judge’s decision that the complainant was denied reasonable accommodation for his spine condition when the agency refused to allow him to telework full time. The complainant has an inflammatory disease, Ankylosing Spondylitis, that causes some of his vertebrae in his spine to fuse together. The complainant’s long commute exacerbated his condition, and he requested to telework full-time or to telework three days with one day working in a closer office.

The agency argued that the complainant was not qualified for his financial analyst position because his inability to commute made him unable to perform the essential functions of his position, such as conducting on-site reviews, interacting with colleagues, and retrieving and responding to mail. The agency’s denial of accommodation was based on its determination that driving and commuting to work is not considered a major life activity.

After the agency initially denied the complainant’s requested accommodation, it allowed the complainant to telework three days per week and to report to a closer office at a remote location one day a week. Subsequently, the agency denied the complainant’s request to report to the remote location one day a week. The agency’s determination was based on its assessment that all of the essential functions of the complainant’s job could not be performed from the remote location.

The administrative judge determined that the complainant was a qualified individual because he was able to perform the essential functions of his position. The AJ found that working collaboratively with colleagues, training and mentoring other employees, and attending meetings, while essential functions, were not required to be performed in-person. The AJ found that when it determined that the requested accommodations would not work, the agency failed to consider reassignment and, therefore, failed to continue to engage in the interactive process. The AJ ordered the agency to provide the complainant with the reasonable accommodation of telework 100 percent of the time and awarded the complainant $15,000 in non-pecuniary compensatory damages.

The EEOC found that substantial evidence supported the AJ’s decision that the requested accommodation would not constitute an undue hardship on the agency. The EEOC stated that because the complainant is a qualified individual with a disability, the agency failed in its duty to engage in the interactive process to determine if there was an effective reasonable accommodation for his disability. The EEOC affirmed the AJ’s award of $15,000 in nonpecuniary compensatory damages and expunction of the letter of reprimand from agency files.

* This information is provided by the attorneys at Passman & Kaplan, P.C., a law firm dedicated to the representation of federal employees worldwide. For more information on Passman & Kaplan, P.C., go to http://www.passmanandkaplan.com.

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