Discrimination against Applicant

The EEOC recently ruled that the State Department discriminated against an applicant for a junior office position with the Foreign Service because he was regarded as mentally disabled. Bitsas v. State Department, EEOC Appeal No. 0120051657 (9/30/09). In its final agency decision, the State Department had concluded that only 34 percent of posts worldwide would be able to provide adequate medical care for the complainant if he were to suffer a relapse of his psychiatric conditions. On appeal to the EEOC, the applicant contended that he should have been granted a waiver of the worldwide availability standard, asserting his extraordinary skills and qualifications were needed by the Foreign Service, and that agency personnel improperly regarded him as disabled without completing an adequate medical background investigation in his case.

In its decision, the EEOC first determined that the complainant was not an "individual with a disability" and didn't have a "record of" a disability which was substantially limiting, although he had prior psychological episodes. However, it found "that the agency regarded complainant as having one or more chronic impairments which, if they were to relapse, would substantially limit his ability to care for himself and to interact with others." The nurse practitioner who was the chief of medical clearances made this determination without having ever met the applicant and not remembering his specific case. The EEOC held that the complainant has "shown that numerous agency personnel who were involved in denying his application for employment regarded him as having impairments which rendered him substantially limited in the major life activities of caring for himself and/or interacting with others."

The EEOC found that the complainant was "medically fit to serve in any post worldwide" as he was fluent in a number of foreign languages and could communicate with foreign medical providers and therapists if necessary. In addition, there was no evidence that the applicant posed a "direct threat" as his "medical history suggests that the severity of the potential harm would in fact be low." Because the agency did not base its decision to reject the complainant on substantial information regarding his work and medical history and the agency psychiatrist never spoke to him, the EEOC concluded that "the agency failed to conduct an individualized assessment, jumping to conclusions based upon on their own unfounded assumptions and fears." Therefore, the EEOC ordered that the State Department retroactively offer the complainant a position in the Foreign Service and not use the prior medical assessment. If he does not obtain a medical clearance, the agency must assess the complainant's application pursuant to its waiver process.

* 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/.

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