Fedweek Legal

The Equal Employment Opportunity Commission Office of Federal Operations (OFO) ruled in Complainant v. Dept. of Education, Appeal No. 0720130002 (August 27, 2014), that the Department of Education violated the Rehabilitation Act when it presented applicants with a disability-related inquiry during the application process.

The department posted a position with USAJOBS for an EEO specialist position, asking this question: “Do you have a physical or mental impairment that limits one or more major life activities and has been certified by the State Department of Vocation Services rending you eligible for the Federal Employment Program for Persons with Disabilities?”

The complainant was not selected for an interview and claimed that the department subjected him to discrimination based on his disability (deafness). The department admitted that the USAJOBS posting presented applicants with an illegal inquiry, but argued that Office of Personnel Management was to blame because OPM operated USAJOBS.The administrative judge rejected that argument and found the department must be held responsible for the questions it puts forth to applicants.

The AJ found that the complainant was entitled to $5,000 in compensatory damages. The complainant and his wife testified that after he learned of the non-selection and believed it was due to his disability responses, he cried for the first time in decades, had headaches, anxiety, sleeplessness, irritability, and restlessness.A friend testified that after the non-selection, the complainant withdrew from social interactions and was gloomy.

On appeal, the OFO reiterated that under the Rehabilitation Act, an employer may ask disability-related questions and require medical examinations of an applicant only after the applicant has been given a conditional job offer and as long as this is done for all entering employees in that job category. Itsimilarly rejected the department’s argument that OPM’s maintenance of USAJOBS absolved it of any liability, ruling that agencies must be held responsible for questions they pose to applicants.OFO also upheld the $5,000 award, finding that it was appropriate based on similar cases.

* 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.

The attorneys at Passman & Kaplan, P.C, are the authors of The Federal Employees Legal Survival Guide, Second Edition, a comprehensive overview of federal employees’ legal rights. To order your copy, go to http://www.passmanandkaplan.com/CM/Custom/Federal-Employees-Survival-Guide.asp. This book originally sold for $49.95 plus s&h, but is now available for $29.95 plus s&h.