Application of Rehabilitation to TSA

In Getzlow v. Department of Homeland Security, EEOC Appeal No. 0120053286 (June 26, 2007), the Equal Employment Opportunity Commission (EEOC) held that the employment qualification standards created pursuant to the Aviation and Transportation Act (ATSA) supersede the requirements under the Rehabilitation Act of 1973, as amended. The commission upheld an administrative judge's denial of the agency's motion to dismiss for failure to state a claim and granting of the agency's motion for findings and conclusions without a hearing.

The appellant was an applicant for a security screener position. The hiring process consisted of several exercises designed to assist in the assessment of mental, physical, and psychological aptitude. During one of the exercises, the appellant discontinued her participation and left the premises. The following day, in support of her request to continue the hiring process, she presented the agency a note from her doctor explaining that she had been diagnosed with bipolar disorder and recommending that she be provided an accommodation to allow her to complete the unfinished portions of the hiring process. The agency refused to allow her to continue the hiring process. In response, the appellant filed a discrimination complaint based on her mental disability under the Rehabilitation Act. The agency filed a motion to dismiss for failure to state a claim, arguing that the ATSA superseded the Rehabilitation Act. The administrative judge denied this motion, but granted another motion for summary judgment, resulting in dismissal of the original complaint. The appellant appealed to the commission seeking a reversal of the administrative judge's dismissal.

In the wake of the terrorist attacks on September 11, 2001, the ATSA created the Transportation Security Administration (TSA). The ATSA granted the Under Secretary of Transportation the authority to establish hiring criteria and a qualifying examination for security screening personnel, "notwithstanding any provision of law." Until Getzlow, there had been no determination as to how the Rehabilitation Act would be applied to the ATSA, if at all.

The commission found that the ATSA does not completely supersede the Rehabilitation Act. Instead, it found more specifically that where the hiring qualification standards created pursuant to ATSA conflict with the requirements of the Rehabilitation Act, then the Rehabilitation Act will be preempted. In interpreting the ATSA, the commission acknowledged that the act was created in order to promote national security and to protect this nation's transportation systems. Also, the commission found more generally that the ATSA will prevail whenever it is at variance with the Rehabilitation Act. Moreover, the commission emphasized its interpretation that the ATSA does not wholly supersede the Rehabilitation Act by noting that whether a complaint by security screener states a claim under the Rehabilitation Act must be determined on a case-by-case basis.

As guidance, the EEOC instructed that in the context of a discrimination complaint by a security screener, or presumably by an applicant for a security screener position, the complainant would fail to state a claim under the Rehabilitation Act if "he directly challenged the validity of an ATSA-mandated qualification standard or if a complaint clearly revealed that any needed accommodation would negate an ATSA-mandated standard."