EEOC Finds Disability Discrimination

Wednesday, May 28, 2008

The EEOC recently held that the Department of Homeland Security (DHS or agency) improperly used its vision standard to disqualify an individual from employment as a detention enforcement officer (DEO) without making any determination as to his ability to perform the job's essential functions with or without a reasonable accommodation. Poquiz v. Homeland Sec. Dep't, EEOC Appeal No. 0720050095 (2008). The complainant has limited vision in his right eye due to a previous injury. After the Bureau of Prison waived its vision standard, the complainant was hired as a correctional officer (CO). Subsequently, the complainant applied for a DEO position with DHS, and he was hired subject to medical and security clearances.

The agency found the complainant medically ineligible because it alleged he would not be able to handle a crisis situation where good eyesight was necessary, his corrective lenses could become dislodged and that consequently, the complainant was a direct threat to himself and others. The complainant requested re-examination of the medical determination, explaining he had normal peripheral vision in both eyes and only redundancy in eyesight, and that he was able to perform his CO duties without a problem. DHS denied his request and added that DEOs must have a commercial driver's license, which requires better vision than the complainant's. The complainant sought a waiver of the vision standard and commercial driver's license requirement as a reasonable accommodation. Also, he filed an EEO complaint alleging discrimination on the basis of disability.

An administrative judge (AJ) found that DHS improperly denied the complainant the position because the complainant had a record of disability, was regarded as disabled and concluded that DHS's decision was based on incorrect assumptions about the complainant's vision. However, the agency issued a final order rejecting the AJ's finding that the complainant proved he was subjected to discrimination as alleged. The complainant appealed the agency's final order to the EEOC.

Based on the complainant's testimony and medical records, the Commission held that the complainant had a record of an impairment that substantially limited the major life activity of seeing. The complainant established his "eye impairment significantly restricted the duration, manner or condition under which the major life activity of seeing was performed, as compared to the average person's ability to perform the major life activity." 29 C.F.R. 1630.2(j). Additionally, the Commission found that the complainant established he was a "qualified individual with a disability" through demonstrating that he had the requisite skill, experience and other job-related requirements of the position, and that he could perform the essential functions of the job with or without reasonable accommodation. 29 C.F.R. §1630.2(m). The EEOC found it significant that the complainant performed similar duties identified as critical tasks for the DEO position in his prior employment as a CO. Consequently, the Commission held the only reason the complainant was not hired was his vision impairment, and that the complainant was otherwise qualified for the DEO position, except for his failure to meet the agency's vision standard.

It is unlawful for an agency to use qualifications standards, employment tests or other selection criteria that screen out or tend to screen out, an individual with a disability, or class of individuals with disabilities, on the basis of disability, unless the standard, test or other selection criteria, as used by the agency, is shown to job-related for the position in question and is consistent with business necessity. 20 C.F.R. §1630.10. The qualification standards must constitute an accurate measure of a complainant's ability to perform the essential function of the position at issue. See Pointer v. United States Postal Service, EEOC Appeal No. 07A10057 (2003) (citing Interpretive Guidance on Title I of the Americans With Disabilities Act, Appendix to 29 C.F.R. §1630.10). Accordingly, the Commission held DHS "did not make an individualized assessment of the alleged risk posed by complainant and, instead, applied a blanket medical qualification standard without examining the specific application to complainant...[and] provided no evidence indicating the likelihood that a DEO's corrective lenses could fail [or] be dislodged...during the performance of his duties."

Finally, the EEOC upheld the AJ's award of $9,000 in compensatory damages and $46,471 in attorneys' fees and ordered the hiring of the complainant into a DEO position, with back pay and benefits.

* 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 //o/.

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