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					                  OEDCA DIGEST
 Vol. IV, No. 2           Department of Veterans Affairs                    Spring 2001
                       Office of Employment Discrimination
                              Complaint Adjudication



Summaries of Selected Decisions Issued by the Office of
 Employment Discrimination Complaint Adjudication



                                 FROM THE DIRECTOR

The Office of Employment Discrimination Complaint Adjudication is an independent, ad-
judication unit created by statute. Located in the Office of the Secretary, OEDCA‘s
function is to issue the Department‘s final decision or order on complaints of employ-
ment discrimination filed against the Department. The Director, whose decisions are
not subject to appeal by the Department, reports directly to the Secretary of Veterans
Affairs.

Each quarter, OEDCA publishes a digest of selected decisions issued by the Director
that might be instructive or otherwise of interest to the Department and its employees.
Topics covered in this issue include hostile environment harassment, the concept of
―undue hardship‖ in disability accommodation cases, temporary disabilities, manage-
ment‘s legal burden of articulating a nondiscriminatory reason for its decisions, service-
connected disability ratings awarded by the VA, and ―reverse age discrimination.‖

Also included in this issue is the sixth in a series of articles concerning frequently asked
questions and answers pertaining to the rights and responsibilities of employees and
employers with regard to requests for reasonable accommodation of a disability. Also
included is a discussion of finding rates by EEOC‘s administrative judges in VA cases.

The OEDCA Digest is available on the World Wide Web at: www.va.gov/orm.


                                   Charles R. Delobe


Case Summaries………………………………………………………………………………2
Frequently Asked Questions and Answers on Reasonable Accommodation…………..8
Finding Rate by EEOC Judges Declining………………………………………………....14
                         OEDCA DIGEST

                    I                        ness, however, did recall hearing the
                                             supervisor mention something about the
A FEW ISOLATED INCIDENTS OF                  complainant‘s sick leave balance.
ALLEGED DISCRIMINATORY CON-
DUCT NOT SUFFICIENT TO PROVE A               Notwithstanding the conflicting evi-
“HOSTILE ENVIRONMENT” CLAIM                  dence, the EEOC judge correctly found
                                             that, even if all of the incidents did occur
An employee complained that her su-          as she alleged, they did not amount to
pervisor had been harassing her be-          hostile environment harassment in viola-
cause of her gender, thereby creating a      tion of Title VII of the Civil Rights Act. A
hostile work environment. By way of          ―hostile work environment‖ is, according
evidence, she identified a few instances     to U.S. Supreme Court decisions, one
when her supervisor had discussed            which is ―permeated with ‗discriminatory
work-related matters with her in the         intimidation, ridicule, or insult‘ that is
presence of her co-workers.                  ‗sufficiently severe or pervasive to alter
                                             the conditions of the victim‘s employ-
In one incident, she claims that her su-     ment and create an abusive working en-
pervisor entered her office, and re-         vironment.‘‖
quested a copy of her medical excuse
while another employee was present.          In order to prove such a claim, an em-
One month later, the supervisor entered      ployee must do much more than simply
her office and asked her to call him         show a difficult or stressful work envi-
about a name-calling incident. On some       ronment, or actions by supervisors or
other occasions, she claims the supervi-     co-workers that are annoying. Instead,
sor made statements about her zero           the employee must first present evi-
sick leave balance and her workers‘          dence of verbal or physical conduct that
compensation claim in front of other         denigrates or shows hostility or aversion
employees.                                   towards his or her specific racial, ethnic,
                                             or other EEO-protected group. In this
After reviewing all of the evidence in the   case, where the employee alleged ha-
record, OEDCA agreed with and ac-            rassment because of her gender, it
cepted an EEOC administrative judge‘s        would require credible evidence of spe-
decision that the complainant had failed     cific comments or conduct directly re-
to prove her claim of discriminatory ha-     lated to the employee‘s gender (e.g.,
rassment. This case is especially in-        gender-related slurs, jokes, insults, etc.).
structive because it highlights a com-
mon misunderstanding by employees as         Second, even if there is evidence of
to the legal meaning of the terms ‖ha-       such comments or conduct, the em-
rassment‖ and ―hostile environment.‖         ployee must also prove (not simply
                                             claim) that the behavior in question was
There was conflicting evidence as to         so severe or pervasive that it altered
whether all of these incidents occurred      employment conditions and created an
as alleged. The supervisor denied dis-       abusive working environment. Infre-
cussing these types of matters in the        quent or isolated comments, even if they
presence of other employees. One wit-        engender offensive feelings, do not con-


                                                                                       2
                          OEDCA DIGEST

stitute an abusive environment.               sufficient, in itself, to prove a claim of
                                              discrimination or harassment.
Although employees frequently allege
discriminatory ―harassment‖ in their          The judge also analyzed this case under
EEO complaints, few present the type of       the disparate treatment theory to deter-
evidence described above. In most             mine if any of the specific incidents
cases, employees are simply complain-         complained of were due to intentional
ing about a difficult supervisor or routine   discrimination because of the complai-
work-related matters such as duty as-         nant‘s gender. The judge found no evi-
signments, time and attendance issues,        dence, direct or indirect, to support a
training, discipline, performance ap-         finding of discriminatory treatment.
praisals, etc. Such complaints are more
properly analyzed as disparate (i.e., dis-
criminatory) treatment cases rather than                          II
―hostile environment harassment‖ cas-
es. In other words, absent evidence of        RACE    DISCRIMINATION FOUND
specific comments or conduct directly         WHERE SUPERVISOR FAILED TO
related to an employee‘s race, gender,        ARTICULATE A LEGITIMATE, NON-
age, etc., the focus will generally be on     DISCRIMINATORY REASON FOR
whether each specific event or person-        LOWERING THE COMPLAINANT’S
nel action complained of occurred be-         PERFORMANCE APPRAISAL
cause of discrimination, as opposed to
whether there was a hostile and abusive       OEDCA recently accepted an EEOC
work environment due to discrimination.       administrative judge‘s finding of race
                                              discrimination in a case in which a head
While the supervisor‘s conduct in this        nurse was unable to explain why she
case -- assuming the incidents occurred       downgraded the complainant‘s perfor-
as alleged -- might have annoyed the          mance rating on the critical element of
employee, she failed to prove that the        ―patient care.‖
supervisor engaged in discriminatory
insult or ridicule or other similar conduct   The complainant (African-American), a
directly related to her gender. In addi-      nursing assistant, had always received
tion, the matters of which she com-           ―exceptional‖ ratings from her former
plained were not so severe or pervasive       head nurse on this element of her an-
as to create a hostile, abusive work en-      nual performance appraisal.        Other
vironment. Indeed, they were typical of       nursing staff described her as con-
routine job-related situations that em-       cerned about, and attentive to, patient
ployees normally encounter everyday in        needs. Nevertheless, her new head
the workplace.                                nurse (Caucasian) downgraded her to
                                              ―fully successful‖ on this element, even
If the incidents in this case did occur as    though the complainant claims there
alleged, there may be reason to ques-         had been no change in the way she was
tion the supervisor‘s judgment and su-        caring for patients.
pervisory skills. However, poor judg-
ment displayed by a supervisor is not         The complainant had warned her new


                                                                                      3
                          OEDCA DIGEST

supervisor about poor patient care being      to justify with clear and specific reasons.
provided by some ―floaters‖ – nursing         Again, while there is no legal burden on
personnel, all Caucasian, assigned to         management to ―prove‖ that it made the
an area on an as needed basis. Instead        right decision, failure to offer such proof
of looking into the matter, however, both     will, as a practical matter, significantly
the head nurse and the chief nurse ac-        increase the chances of a finding of dis-
cused her of disliking Caucasians.            crimination. Of course, if management
                                              is not even able, as was the case here,
Evidence in the record indicated that the     to articulate a reason for its actions,
head nurse began monitoring the com-          such a finding will be automatic.
plainant‘s work more closely, but did not
monitor the work of the floaters, despite
the complainant‘s warning. Moreover,                              III
the head nurse was overheard referring
to the black nursing staff as ―them girls.‖   AN APPLICANT’S SEVERE BACK
In addition, when the floaters com-           PROBLEMS FOUND TO BE A SE-
plained to the head nurse about the           RIOUS THREAT TO HIS HEALTH AND
complainant‘s attitude, the head nurse        ACCOMMODATING     HIM   WOULD
met with them to discuss their concerns.      HAVE CAUSED AN “UNDUE HARD-
                                              SHIP”
The EEOC administrative judge con-
cluded that the preponderance of the          The complainant was tentatively se-
evidence supported a finding of race          lected for the position of Automotive
discrimination. In addition to pointing to    Worker at a VA cemetery, subject to
the disparity in the way in which com-        successful completion of a physical ex-
plaints of White and Black nursing assis-     amination. That examination found de-
tants were handled, the judge noted that      generative disc disease, creating both
the head nurse failed to articulate a rea-    spinal and foraminal stenosis. The phy-
son for downgrading the complainant‘s         sician imposed restrictions on lifting,
rating on the critical element of ―patient    prolonged standing, walking, pushing,
care.‖ This failure, in itself, would be      pulling, kneeling, squatting, bending,
sufficient to support a finding of discrim-   crawling, and working on slippery or un-
ination.                                      even walking surfaces.

The lesson here for supervisors is ob-        Following the physical exam, the Ceme-
vious. Although the supervisor did not        tery Director and the selecting official
have to ―prove‖ that she did not discri-      determined that the types of restricted
minate, the law did require her, at the       activities were essential to successful
very least, to articulate the reason for      performance in the position in question,
her rating. Because she failed to do so,      and that the complainant‘s restrictions
a finding of discrimination was required      could not be accommodated. The com-
under EEO case law.                           plainant subsequently received notifica-
                                              tion that he would not be hired.
Management officials should never take
an action that they are not fully prepared    The complainant claimed that the deci-


                                                                                       4
                          OEDCA DIGEST

sion to reject him constituted discrimina-     quickly, so that the equipment is availa-
tion due to his disability. Specifically, he   ble when needed.
claimed that the restrictions were unne-
cessary, and that he was fully capable         Short of hiring an extra worker, the
of performing the essential duties of the      complainant‘s restrictions could not be
position.                                      accommodated, and hiring an extra
                                               worker would have posed an undue
An EEOC administrative judge found,            hardship on the cemetery‘s operations.
and OEDCA agreed, that the restrictions        Contracting out some of the tasks, even
were essential, and that accommodating         if possible, would have defeated the
them would pose an undue hardship on           primary purpose of having an on-site
the cemetery‘s activities.                     mechanic, who is immediately available
                                               and able to keep the equipment in peak
Specifically, the judge found that the         operating condition.
medical evidence, which included x-
rays, CT scans, the complainant‘s medi-
cal history, and the testimony of the De-                         IV
partment‘s physician, demonstrated that
the constant twisting, bending, pushing,       TEMPORARY USE OF A CANE FOL-
pulling, lifting, crawling, and walking on     LOWING KNEE SURGERY NOT A
uneven and sometimes slippery surfac-          DISABILITY
es -- activities that are inherent in the
position for which he had applied –            The complainant applied, but was not
would place him at significant risk of se-     selected for, the position of Food Ser-
rious injury. In fact, the physician noted     vice Worker. He subsequently filed an
that a single incident of twisting, bend-      EEO complaint alleging that his nonse-
ing, or lifting a heavy object could result    lection was due to his use of a cane.
in paralysis.
                                               According to the investigative record, a
As for accommodating those restric-            panel interviewed the applicants and
tions, the judge correctly found that the      later assigned scores based on the in-
only possible accommodation would be           terviews and the applicants‘ qualifica-
to hire an extra worker. The job entails       tions. The complainant scored the low-
repairing mechanical equipment used            est of all the applicants. He states,
for burials. Repairs must often be ac-         however, that during the interview, a
complished in the field and on short no-       panel member asked him if his use of
tice. When a burial is scheduled, the          the cane would cause him any problems
equipment is needed, and there is no           on the job, and that he responded by
time to negotiate a repair contract. The       saying that it would not. He believes
employee must work for long periods in         that the question was inappropriate and
uncomfortable positions in order to            that his use of the cane was the reason
access the part or parts in need of re-        he was not chosen.
pair, and must frequently lift and support
heavy replacement parts while installing       Management officials dispute that asser-
them. The repairs must be completed            tion. The person in charge of the inter-


                                                                                      5
                          OEDCA DIGEST

view panel, a food service supervisor,        not support a finding that an individual is
testified that the complainant inter-         disabled for purposes of the Rehabilita-
viewed well, as did the other applicants,     tion Act.
but that the person selected had more
experience that was directly related to       By the complainant‘s own admission, his
the position. She also acknowledges           use of a cane was temporary in nature.
asking the complainant about his use of       He presented no evidence, nor did he
a cane, and recalls the complainant stat-     even claim, that his knee surgery
ing ―it was only a temporary thing be-        created a permanent, substantial limita-
cause he had surgery on his knee.‖ She        tion on any of his major life activities.
denies that his use of a cane was a fac-      Absent proof of a substantial limitation
tor in the panel‘s ratings.                   on such an activity, the complainant was
                                              unable to prove he was disabled; and,
The selecting official, who was not on        hence, could not prove that his nonse-
the interview panel, testified that she       lection was due to discrimination be-
chose the selectee because of that indi-      cause of a disability.
vidual‘s prior experience in the Federal
government as a food service worker.
She further stated that the complainant‘s                         V
use of a cane was not a factor in her
decision, as she was not even aware           EVIDENCE OF A SERVICE CON-
that he was using a cane.                     NECTED DISABILITY RATING FROM
                                              THE VA IS NOT NECESSARILY EVI-
To prevail on a claim of employment           DENCE OF A DISABILITY UNDER
discrimination, a complainant must first      EEO LAWS AND REGULATIONS
establish a prima facie case. If a prima
facie case is established, management         This recent case addresses the question
must articulate a legitimate, nondiscri-      of whether a veteran has a ―disability‖
minatory reason for its action or deci-       under EEO law simply because the VA
sion. If management articulates such a        has awarded the veteran a disability rat-
reason, the complainant must then             ing due to a service-connected injury or
prove by a preponderance of the evi-          disease.
dence that the articulated reason was
not the true reason, but was instead a        A veteran was fired during the probatio-
pretext to mask a discriminatory motive.      nary period for tardiness, excessive sick
                                              leave, and sleeping on the job. He
Based on the evidence in the record,          claimed that other employees did the
OEDCA concluded that the complainant          same thing and were not fired, and that
was unable to establish even a prima          the real reason he was fired was be-
facie case of disability discrimination, as   cause of his disability. He described his
the complainant was unable to demon-          disability as a spinal condition that
strate that he had a disability. The          causes lower back pain. As evidence of
Equal Employment Opportunity Com-             his disability, he presented proof of a
mission has consistently held that tem-       20% disability rating from the VA for tho-
porary medical conditions will generally      racic lumbar strain, for which he was re-


                                                                                       6
                            OEDCA DIGEST

ceiving a monthly compensation benefit.          gible for a VA disability rating, a veteran
He presented no evidence, however,               does not necessarily have to show a
that this medical condition substantially        substantial limitation of a major life activ-
limited any of his major life activities.        ity (although many veterans with disa-
Moreover, he never requested an ac-              bility ratings obviously do have such li-
commodation for the condition before             mitations.) Instead, the veteran need
being fired.                                     only show a service-connected medical
                                                 condition that, to some extent, impairs
An EEOC administrative judge found,              earning capacity, even though the con-
and OEDCA agreed, that the complai-              dition may not substantially limit a major
nant‘s discharge was not due to disabili-        life activity, as is required by the Reha-
ty discrimination, mainly because com-           bilitation Act and the Americans with
plainant‘s medical condition did not             Disabilities Act.
amount to a disability under EEO law
and regulations. This was so despite             By the same token, some veterans may
the fact that the VA had already catego-         not be eligible for a VA disability rating
rized it as a ―disability‖ under its disabili-   because they lack a qualifying impair-
ty compensation regulations.                     ment under VA‘s regulations, yet they
                                                 could still be considered disabled under
To qualify as a disability under EEO law,        the Rehabilitation Act. For example, a
an individual must show that he or she           veteran may have a record of a substan-
has a physical or mental impairment that         tially limiting impairment, even if he or
substantially limits one or more major           she no longer has the impairment; or
life activities, or has a record of such an      may be perceived by an employer as
impairment, or is regarded as having             having a substantially limiting impair-
such an impairment.                              ment, even if he or she does not actually
                                                 have such an impairment. Each of
―Major life activities‖ include – but are        these situations would fall within the de-
not limited to – functions such as caring        finition of ―disability‖ under the Rehabili-
for one‘s self, performing manual tasks,         tation Act, yet not satisfy the VA‘s re-
walking, seeing, hearing, speaking,              quirements for a disability rating.
breathing, learning, and working. In ad-
dition to the above requirements, the            Thus, the fact that a veteran has a VA
impairment must generally be perma-              disability rating does not necessarily
nent, not temporary in nature. In some           prove that the veteran is disabled under
circumstances, two or more impairments           EEO law. Any veteran with a VA disa-
that are not substantially limiting by           bility rating who is claiming employment
themselves may together substantially            discrimination due to a disability must do
limit the major life activity of an individu-    more than simply offer evidence of a VA
al.                                              disability rating in order to prove the ex-
The VA‘s disability percentage ratings,          istence of a disability. He or she must
on the other hand, represent the aver-           generally present medical or other evi-
age impairment in overall earning ca-            dence sufficient to show either: a medi-
pacity and are designed to compensate            cal impairment that substantially limits a
for loss of working time. Thus, to be eli-       major life activity, or a record of such


                                                                                            7
                          OEDCA DIGEST

impairment, or a perception by an em-         (CBA), used the ―earliest date of birth‖
ployer of such impairment.                    as a tie-breaker to establish seniority
                                              where two or more employees had the
VA‘s EEO investigators must be alert to       same length of service. Two younger
these definitional distinctions.      Many    employees, who were adversely af-
veterans mistakenly assume that their         fected by the CBA provision favoring
VA disability rating is sufficient to prove   older employees, filed age discrimina-
they are disabled for purposes of their       tion complaints. The Postal Service
EEO complaint. It is, therefore, essen-       found no age discrimination in both cas-
tial for EEO investigators to ensure that     es. The Postal Service argued -- as
veterans are given adequate notice and        would most employers -- that the ADEA
opportunity to provide the requisite med-     is violated only when older employees,
ical or other evidence showing that they      age 40 or over, are discriminated
have a disability, as defined by the Re-      against in favor of younger employees.
habilitation Act, even if the veteran has
provided proof of a VA disability rating.     On appeal, the EEOC rejected this ar-
                                              gument, pointing to its ADEA regulations
                                              (29 CFR Section 1625.2(a)), which pro-
                    VI                        vide as follows:

EEOC FINDS “REVERSE” AGE DIS-                       “It is unlawful in situations where
CRIMINATION WHERE “EARLIEST                         [the ADEA] applies for an em-
DATE OF BIRTH” WAS USED AS A                        ployer to discriminate in hiring or
SENIORITY TIE-BREAKER                               in any other way by giving prefe-
                                                    rence because of age between
(Although the following cases arose at              individuals 40 and over. Thus, if
another Federal agency, we are includ-              two people apply for the same
ing them in the OEDCA Digest because                position, and one is 42 and the
they involve an unusual interpretation by           other is 52, the employer may not
the EEOC of the Age Discrimination in               lawfully turn down either one on
Employment Act, of which VA manag-                  the basis of age, but must make
ers, supervisors, and union officials               such decision on the basis of
should be aware.                                    some other factor.”

In two nearly identical cases involving       The EEOC further held that it matters
the U.S. Postal Service, the EEOC held        not that the age preference the Postal
that it is possible to discriminate be-       Service granted in these cases was
tween employees protected by the Age          mandated by a collective bargaining
Discrimination in Employment Act              agreement. The Commission ordered
(ADEA) — i.e., employees who are 40           the Postal Service to negotiate a new
years of age or older — by favoring the       ―tie-breaker‖ provision.
older employee.

The Postal Service, in accordance with
a collective bargaining agreement                               VII


                                                                                     8
                          OEDCA DIGEST

                                              effective, and (3) if effective, whether
FREQUENTLY ASKED QUESTIONS                    providing the reasonable accommoda-
AND ANSWERS CONCERNING THE                    tion would impose an undue hardship. If
DUTY TO ACCOMMODATE AN EM-                    a reasonable accommodation turns out
PLOYEE’S DISABILITY                           to be ineffective and the employee with
                                              a disability remains unable to perform
(Complaints concerning an employer’s          an essential function, the employer must
failure to accommodate an employee’s          consider whether there would be an al-
disability account for a significant num-     ternative reasonable accommodation
ber of discrimination complaints filed        that would not pose an undue hardship.
against private and Federal sector em-        If there is no alternative accommoda-
ployers. Unfortunately, this is one of the    tion, then the employer must attempt to
most difficult and least understood areas     reassign the employee to a vacant posi-
of civil rights law. This is the sixth in a   tion for which s/he is qualified, unless to
series of articles addressing some fre-       do so would cause an undue hardship.
quently asked questions and answers
concerning the reasonable accom-              Q.2. Does an employer have to
modation requirement.                         change a person's supervisor as a
                                              form of reasonable accommodation?
Q.1. If an employer has provided one
reasonable accommodation, does it             A.2. No. An employer does not have
have to provide additional reasonable         to provide an employee with a new su-
accommodations requested by an in-            pervisor as a reasonable accommoda-
dividual with a disability?                   tion. Nothing in the ADA, however, pro-
                                              hibits an employer from doing so. Fur-
A.1. The duty to provide reasonable           thermore, although an employer is not
accommodation is an ongoing one.              required to change supervisors, the
Certain individuals require only one rea-     ADA may require that supervisory me-
sonable accommodation, while others           thods be altered as a form of reasonable
may need more than one. Still others          accommodation. Also, an employee
may need one reasonable accommoda-            with a disability is protected from disabil-
tion for a period of time, and then at a      ity-based discrimination by a supervisor,
later date, require another type of rea-      including disability-based harassment.
sonable accommodation. If an individu-
al requests multiple reasonable accom-                Example: A supervisor frequently
modations, s/he is entitled only to those     schedules team meetings on a day's no-
accommodations that are necessitated          tice - often notifying staff in the after-
by a disability and that will provide an      noon that a meeting will be held on the
equal employment opportunity.                 following morning. An employee with a
                                              disability has missed several meetings
An employer must consider each re-            because they have conflicted with pre-
quest for reasonable accommodation            viously scheduled physical therapy ses-
and determine: (1) whether the accom-         sions. The employee asks that the su-
modation is needed, (2) if needed,            pervisor give her two to three days' no-
whether the accommodation would be            tice of team meetings so that, if neces-


                                                                                        9
                         OEDCA DIGEST

sary, she can reschedule the physical        cipline or termination of an employee
therapy sessions. Assuming no undue          who, because of a disability, violated
hardship would result, the supervisor        a conduct rule that is job-related for the
must make this reasonable accommo-           position in question and consistent with
dation.                                      business necessity?

Q.3. Does an employer have to allow          A.4 No. An employer never has to
an employee with a disability to work at     excuse a violation of a uniformly applied
home as a reasonable accommodation?          conduct rule that is job-related and con-
                                             sistent with business necessity. This
A.3. An employer must modify its poli-       means, for example, that an employer
cy concerning where work is performed        never has to tolerate or excuse violence,
if such a change is needed as a reason-      threats of violence, stealing, or destruc-
able accommodation, but only if this         tion of property. An employer may dis-
accommodation would be effective             cipline an employee with a disability for
and would not cause an undue hard-           engaging in such misconduct if it would
ship. Whether this accommodation is          impose the same discipline on an em-
effective will depend on whether the es-     ployee without a disability.
sential functions of the position can be
performed at home. There are certain         Q.5. Must an employer provide a rea-
jobs in which the essential functions can    sonable accommodation for an em-
only be performed at the work site --        ployee with a disability who violated
e.g., food server, and cashier in a store.   a conduct rule that is job-related for
For such jobs, allowing an employee to       the position in question and consis-
work at home is not effective because it     tent with business necessity?
does not enable an employee to perform
his/her essential functions. Certain con-    A.5 An employer must make reason-
siderations may be critical in determin-     able accommodation to enable an oth-
ing whether a job can be effectively per-    erwise qualified employee with a dis-
formed at home, including (but not li-       ability to meet such a conduct standard
mited to) the employer's ability to ade-     in the future, barring undue hardship,
quately supervise the employee and the       except where the punishment for the vi-
employee's need to work with certain         olation is termination. Since reasonable
equipment or tools that cannot be repli-     accommodation is always prospective,
cated at home. In contrast, employees        an employer is not required to excuse
may be able to perform the essential         past misconduct even if it is the result of
functions of certain types of jobs at        the individual's disability. Possible rea-
home (e.g., telemarketer, proofreader).      sonable accommodations could include
For these types of jobs, an employer         adjustments to starting times, specified
may deny a request to work at home if it     breaks, and leave if these accommoda-
can show that another accommodation          tions will enable an employee to comply
would be effective or if working at home     with conduct rules.
will cause undue hardship.
                                                    Example: An employee with ma-
Q.4.   Must an employer withhold dis-        jor depression is often late for work be-


                                                                                     10
                          OEDCA DIGEST

cause of medication side effects that         ensure that s/he is receiving appropriate
make him extremely groggy in the morn-        treatment because such treatment does
ing. His scheduled hours are 9:00 a.m.        not involve modifying workplace bar-
to 5:30 p.m., but he arrives at 9:00,         riers.
9:30, 10:00, or even 10:30 on any given
day. His job responsibilities involve tel-    It may be a form of reasonable accom-
ephone contact with the company's             modation, however, to give an employee
traveling sales representatives, who de-      a break in order that s/he may take me-
pend on him to answer urgent marketing        dication, or to grant leave so that an
questions and expedite special orders.        employee may obtain treatment.
The employer disciplines him for tardi-
ness, stating that continued failure to       Q.7. Is an employer relieved of its
arrive promptly during the next month         obligation to provide reasonable ac-
will result in termination of his employ-     commodation for an employee with a
ment. The individual then explains that       disability who fails to take medication,
he was late because of a disability and       to obtain medical treatment, or to use an
needs to work on a later schedule. In         assistive device (such as a hearing
this situation, the employer may discip-      aid)?
line the employee because he violated a
conduct standard addressing tardiness         A.7. No. The ADA requires an em-
that is job-related for the position in       ployer to provide reasonable accommo-
question and consistent with business         dation to remove workplace barriers, re-
necessity.      The employer, however,        gardless of what effect medication, other
must consider reasonable accommoda-           medical treatment, or assistive devices
tion, barring undue hardship, to enable       may have on an employee's ability to
this individual to meet this standard in      perform the job.
the future. For example, if this individual
can serve the company's sales repre-          However, if an employee with a disabili-
sentatives by regularly working a sche-       ty, with or without reasonable accom-
dule of 10:00 a.m. to 6:30 p.m., a rea-       modation, cannot perform the essential
sonable accommodation would be to             functions of the position or poses a di-
modify his schedule so that he is not re-     rect threat in the absence of medication,
quired to report for work until 10:00 a.m.    treatment, or an assistive device, then
                                              s/he is unqualified.
Q.6. Is it a reasonable accommodation
to make sure that an employee takes           Q.8 Must an employer provide a rea-
medication as prescribed?                     sonable accommodation that is needed
                                              because of the side effects of medica-
A.6 No. Medication monitoring is not          tion or treatment related to the disa-
a reasonable accommodation. Employ-           bility, or because of symptoms or other
ers have no obligation to monitor medi-       medical conditions resulting from the
cation because doing so does not re-          underlying disability?
move a workplace barrier. Similarly, an
employer has no responsibility to moni-       A.8 Yes. The side effects caused by
tor an employee's medical treatment or        the medication that an employee must


                                                                                    11
                          OEDCA DIGEST

take because of the disability are limita-     reasonable accommodation -- must in-
tions resulting from the disability. Rea-      form the employer that an accommoda-
sonable accommodation extends to all           tion is needed.
limitations resulting from a disability.
                                               However, an employer should initiate
       Example A: An employee with             the reasonable accommodation in-
cancer undergoes chemotherapy twice            teractive process without being
a week, which causes her to be quite ill       asked if the employer: (1) knows that
afterwards. The employee requests a            the employee has a disability, (2)
modified schedule -- leave for the two         knows, or has reason to know, that the
days a week of chemotherapy. The               employee is experiencing workplace
treatment will last six weeks. Unless it       problems because of the disability, and
can show undue hardship, the employer          (3) knows, or has reason to know, that
must grant this request.                       the disability prevents the employee
                                               from requesting a reasonable accom-
Similarly, any symptoms or related med-        modation. If the individual with a disabil-
ical conditions resulting from the disabili-   ity states that s/he does not need a rea-
ty that cause limitations may also re-         sonable accommodation, the employer
quire reasonable accommodation.                will have fulfilled its obligation.

        Example B: An employee, as a                   Example:    An employee with
result of insulin-dependent diabetes, has      mental retardation delivers messages at
developed background retinopathy (a            a law firm. He frequently mixes up
vision impairment). The employee, who          messages for "R. Miller" and "T. Miller."
already has provided documentation             The employer knows about the disabili-
showing his diabetes is a disability, re-      ty, suspects that the performance prob-
quests a device to enlarge the text on         lem is a result of the disability, and
his computer screen. The employer can          knows that this employee is unable to
request documentation that the retino-         ask for a reasonable accommodation
pathy is related to the diabetes, but the      because of his mental retardation. The
employee does not have to show that            employer asks the employee about mix-
the retinopathy is an independent disa-        ing up the two names and asks if it
bility under the ADA. Since the retino-        would be helpful to spell the first name
pathy is a consequence of the diabetes,        of each person. When the employee
the request must be granted unless un-         says that would be better, the employer,
due hardship can be shown.                     as a reasonable accommodation, in-
                                               structs the receptionist to write the full
Q.9 Must an employer ask whether a             first name when messages are left for
reasonable accommodation is needed             one of the Messrs. Miller.
when an employee has not asked for             Q.10. May an employer ask whether a
one?                                           reasonable accommodation is needed
                                               when an employee with a disability
A.9 Generally, no. As a general rule,          has not asked for one?
the individual with a disability -- who has
the most knowledge about the need for          A.10 An employer may ask an em-


                                                                                       12
                         OEDCA DIGEST

ployee with a known disability whether      these circumstances, it is the employer's
s/he needs a reasonable accommoda-          policy to respect employee privacy. An
tion when it reasonably believes that the   employer may be able to make this point
employee may need an accommoda-             effectively by reassuring the employee
tion. For example, an employer could        asking the question that his/her privacy
ask a deaf employee who is being sent       would similarly be respected if s/he
on a business trip if s/he needs reason-    found it necessary to ask the employer
able accommodation. Or, if an employ-       for some kind of workplace change for
er is scheduling a luncheon at a restau-    personal reasons.
rant and is uncertain about what ques-
tions it should ask to ensure that the      Since responding to specific coworker
restaurant is accessible for an employee    questions may be difficult, employers
who uses a wheelchair, the employer         might find it helpful before such ques-
may first ask the employee. An em-          tions are raised to provide all employees
ployer also may ask an employee with a      with information about various laws that
disability who is having performance or     require employers to meet certain em-
conduct problems if s/he needs reason-      ployee needs (e.g., the ADA and the
able accommodation.                         Family and Medical Leave Act), while
                                            also requiring them to protect the priva-
Q.11 May an employer tell other em-         cy of employees. In providing general
ployees that an individual is receiv-       ADA information to employees, an em-
ing a reasonable accommodation              ployer may wish to highlight the obliga-
when employees ask questions about a        tion to provide reasonable accommoda-
coworker with a disability?                 tion, including the interactive process
                                            and different types of reasonable ac-
A.11 No! An employer may not dis-           commodations, and the statute's confi-
close that an employee is receiving a       dentiality protections. Such information
reasonable accommodation because            could be delivered in orientation mate-
this usually amounts to a disclosure that   rials, employee handbooks, notices ac-
the individual has a disability. The ADA    companying pay stubs, and posted
specifically prohibits the disclosure of    flyers. Employers may wish to explore
medical information except in certain       these and other alternatives with unions
limited situations, which do not include    because they too are bound by the
disclosure to coworkers.                    ADA's confidentiality provisions. Union
                                            meetings and bulletin boards may be
An employer may certainly respond to a      further avenues for such educational ef-
question from an employee about why a       forts.
coworker is receiving what is perceived
as "different" or "special" treatment by    As long as there is no coercion by an
emphasizing its policy of assisting any     employer, an employee with a disability
employee who encounters difficulties in     may voluntarily choose to disclose to
the workplace. The employer also may        coworkers his/her disability and/or the
find it helpful to point out that many of   fact that s/he is receiving a reasonable
the workplace issues encountered by         accommodation.
employees are personal, and that, in


                                                                                  13
                          OEDCA DIGEST

                                             imately 7%, down from 15% in FY 1991.
In the next edition of the OEDCA Digest,
we will discuss the concept of “undue        Not only has the finding rate against the
hardship” -- that is, the burden on an       VA decreased, the actual number of
employer to show that a specific ac-         findings against the VA has also de-
commodation would cause significant          creased, despite an increase over the
difficulty or expense.                       last several years in the number of for-
                                             mal complaints filed. Prior to the crea-
                                             tion of OEDCA and ORM, the VA typi-
                   VIII                      cally received approximately 40-45 find-
                                             ings of discrimination per year from
RATE AT WHICH EEOC ADMINIS-                  EEOC judges. Since the creation of
TRATIVE JUDGES FIND AGAINST                  these organizations, the number of such
THE VA DECLINING                             findings against the VA has dropped
                                             significantly.  Thus far in FY 2001,
With the adoption of EEOC‘s recent re-       EEOC judges have found against the
visions to its Federal sector complaint      VA in only 16 cases.
processing regulation that give EEOC
administrative judges binding decision
authority, most Federal agencies were
expecting a significant increase in the
rate at which the EEOC judges would be
finding discrimination. VA‘s experience
thus far has been to the contrary. In
fact, the finding rate for EEOC‘s judges
in VA cases has been steadily declining.

Prior to the reorganization of VA‘s EEO
complaint processing structure in 1998,
the finding rate by EEOC judges in VA
cases was approximately 15%. Since
the creation of OEDCA and the Office of
Resolution Management (ORM), that
rate has declined significantly. In FY
1999, the first full year of operation for
both organizations, the finding rate had
declined to approximately 10%. Thus
far in FY 2001, it has dropped to less
than 4.7%.
EEOC‘s most recent government-wide
data also show a decline in the finding
rate by judges, but not as great as the
decline for VA cases. In FY 1998 (the
most recent data available from EEOC)
the finding rate had declined to approx-


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