The candidate said the agency violated the rehabilitation act, which states that the government “must take reasonable affirmative steps to accommodate the handicapped, except where undue hardship would result,” according to the appeals court decision.
It said the statute instructs courts to use the standards of the Americans with Disabilities Act of 1990 to evaluate a complaint like the candidate’s alleging non-affirmative action employment discrimination.
One of the agency’s witnesses estimated that “15 percent of the generalists and 16 percent of the specialists are currently restricted from worldwide availability due to medical conditions,” a figure that does not account for other Foreign Service officers who might be unavailable for other reasons, the appeals court said.
It said the record reveals a genuine issue of material fact regarding the extent to which Foreign Service officers must be available to serve in overseas posts — and that the agency was not entitled to summary judgment on the grounds that the candidate would only be able to serve in 68 percent of overseas posts.
The appeals court cited a number of other unsettled factual issues– chief among them being the fact that the agency admitted hiring 12 Foreign Service candidates with asthma between 1998 and 2002.
It said that in light of the factual disputes, that the agency was not entitled to summary judgment, and therefore reversed the district court judgment and remanded it for further proceedings.
