Federal Legal Corner: EEOC Certifies Class Action

After nearly four years, the EEOC’s Office of Federal Operations has affirmed the class certification decision received in September 2010 on a complaint first filed in 2006, challenging the State Department’s “worldwide availability” policy.Doering Meyer, et. al. v. Department of State, Appeal No. 0720110007 (6/6/14).Essentially, to be hired as a Foreign Service officer, applicants have been required to be able to serve at every post in the State Department, worldwide (hundreds of posts), without any kind of need for ongoing medical care (or perceived need for ongoing medical care) or reasonable accommodation. “The Class Agent’s claim, coupled by the supporting documentation gathered so far, suggests that the agency requires all applicants be available for work in 100% of posts, without regard to accommodations or individualized assessments, and is therefore sufficient evidence to infer that the agency operates an overriding policy of discrimination.”

Meyer, the Class Agent, has had multiple sclerosis (MS) in remission for decades, without need for treatment, but was rejected outright for State Department employment anywhere in the world because the office of medical services perceived that her MS might cause her problems in certain places with high humidity. This was not based on any report from her doctors or any examination of her personally, but based upon MS as “a disease entity.” After she missed several posting opportunities over the course of an extended period, losing substantial income and seniority, she was able to help her get a waiver of the “worldwide availability” requirement, and to get hired, based upon her “extraordinary qualifications” (a law degree and speaking fluent Arabic and Turkish, for example).She is now a tenured Foreign Service officer after years of successful service.

The State Department argued that its waiver policy, which Meyer was ultimately able to use, defeated the commonality of the class.The Commission disagreed, noting that “While a waiver may be available if Worldwide Availability is denied, the record reveals many do not take advantage of it, and in fact, are advised that waivers are rarely granted and only then when in the “best interest of the service.”The EEOC concluded the optional waiver process does not defeat commonality as the class definition accounts for the delay in hiring if a waiver is requested and granted.The class was certified on behalf of “all qualified applicants to the Foreign Service beginning on October 7, 2006, who were denied employment, or whose employment was delayed pending application for an receipt of a waiver, because the State Department deemed them not ‘world-wide available’ due to their disability.”

Joseph V. Kaplan, a founding partner of Passman& Kaplan, P.C., is co-counsel on the case.

* 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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