Delay in Reasonable Accommodation

In a case involving one of its own employees, an investigator, the EEOC recently reaffirmed that an agency's long delay in processing a complainant's reasonable accommodation request violates the Rehabilitation Act if the agency cannot justify the delay. The Rehabilitation Act prohibits discrimination on the basis of disability in Federal employment.

In Shealey v. Equal Employment Opportunity Commission, 111 LRP 30774 (EEOC 04/18/2011), the EEOC ordered the placement of the complainant in an investigator position with any necessary reasonable accommodations. Moreover, the EEOC ordered a supplemental investigation on the issue of compensatory damages.

In Shealey, an investigator alleged discrimination based upon disability (major depression). The EEOC found that it had failed to provide her with a reasonable accommodation. Principally, it determined that the investigator met the qualifications for a reasonable accommodation: 1) the depression substantially limited the complainant in the major life activity of concentrating; 2) the investigator had a mental impairment that rose to the level of disability, based upon a medical evaluation by the investigator's psychologist; and 3) the investigator was able to perform the essential functions of her position with a reasonable accommodation. Moreover, the EEOC found that there was a nexus, or direct link, between the complainant's disabling condition and the requested accommodation.

The EEOC found that agency officials were deficient in granting the reasonable accommodation on two grounds: 1) that the reasonable accommodation was ineffective in accommodating the complainant's disability; and 2) that the Rehabilitation Act was violated when the agency unnecessarily delayed its response to the investigator's request for reasonable accommodation. In particular, the agency official in charge of determining whether the reasonable accommodation would be granted did not issue a final determination for nine months. As the complainant had nothing to do with the delay, and the accommodations themselves were not difficult to implement, the EEOC found unnecessary delay. Particularly convincing for the EEOC, was the fact that agency procedures required a request for accommodation decision within 20 business days—so nine months was exceptionally late.

The Shealey decision is a welcome sign that the EEOC is willing to enforce one of the more frustrating components of the Rehabilitation Act for federal employees. Employees should not hesitate to enforce their rights with respect to the timeliness of reasonable accommodation decisions. However, employees also need to keep in mind that some delay in reasonable accommodation requests will be tolerated, principally if the employee contributes to the delay (e.g., not submitting timely medical documentation), or if the delay is not the fault of the official who decides on the request.

* 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 https://www.passmanandkaplan.com.