OEDCA DIGEST Vol VII No Department of Veterans Affairs

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OEDCA DIGEST Vol VII No Department of Veterans Affairs Powered By Docstoc
					                   OEDCA DIGEST
  Vol. VII,           Department of Veterans Affairs                    Summer
   No. 3                    Washington, DC                                2004


  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 independ-
ent adjudication unit created by statute. Located in the Office of the Secretary,
OEDCA’s function is to issue the Department’s final agency decision on complaints
of employment discrimination filed against the Department. The Director, whose
decisions are not subject to appeal by the Department, reports directly to the Secre-
tary 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 em-
ployees. Topics covered in this issue include “pre-offer” medical examinations, com-
pensatory vs. punitive damages, threatening complainants with lawsuits, racial
harassment, disability accommodation (preferred vs. effective), Equal Pay Act
claims, and findings of “reprisal per se.”.

Also included in this issue is an article addressing romantic relationships with sub-
ordinate employees, and a recent fact sheet from the EEOC explaining how The
Americans with Disabilities Act (ADA) might apply to job applicants and employees
with epilepsy.

The OEDCA DIGEST is now available                 on   the   World   Wide   Web   at:
http://www.va.gov/orm/newsevents.htm.

                               CHARLES R. DELOBE

Case Summaries                                                                       2
Article: Romantic Relationships with Subordinate Employees                         11
EEOC Fact Sheet: Epilepsy in the Workplace                                        13
                              OEDCA DIGEST
                          I                              when a patient, whom he was trying
                                                         to help, fell on him. As a result, the
                                                         nurse is unable to lift more than 20
REQUIREMENT THAT APPLI-                                  pounds. Shortly after receiving his
CANT FOR RN POSITION UN-                                 application, nursing officials referred
DERGO MEDICAL EXAM PRIOR                                 him to the VA Employee Health Phy-
TO JOB OFFER VIOLATES “RE-                               sician for a physical examination.
HABILITATION ACT”
                                                         The examining physician issued a re-
The procedure for hiring nurses in the                   port finding that the applicant was
VA differs significantly from the hir-                   unqualified for an RN staff nurse posi-
ing procedures normally used for hir-                    tion because of his lifting restriction.
ing most other Federal employees. VA                     As a result, he was not referred to the
hires its nurses under the authority                     Nurse Professional Standards Board
provided by Title 38 of the United                       (NPSB) for further consideration. He
States Code and implementing regula-                     then filed a complaint alleging dis-
tions issued by the Secretary of Veter-                  crimination due to his disability.
ans Affairs.
                                                         After reviewing the evidence, OEDCA
Title 38 gives the Secretary wide lati-                  concluded that the nurse applicant
tude to determine nurse qualifications                   was unqualified for the position by vir-
and make appointments “without re-                       tue of his lifting restriction. Hence,
gard to civil service requirements.”1                    VA did not discriminate against him
The question that arose in this case                     because of his disability when it did
was whether VA Directive 5005 (Staff-                    not hire him as an RN.
ing), which requires “pre-employment”
medical examinations of RN appli-                        However, OEDCA also concluded that
cants violated The Rehabilitation Act                    nursing officials committed a technical
of 1973. After reviewing the facts of                    violation of The Rehabilitation Act
the case, OEDCA concluded that the                       when they required him to undergo a
requirement violated the Act or, at the                  medical examination prior to deciding
very least, nursing officials at one VA                  whether to make a job offer (i.e., dur-
hospital were interpreting the re-                       ing the “pre-offer” stage). Those offi-
quirement in a manner that violated                      cials justified their action by pointing
the Act.                                                 to VA Directive 5005, which states
                                                         that a “pre-employment” physical ex-
The nurse in question applied for an                     amination is required of all employees
RN staff nurse position. He had pre-                     appointed under Title 38. Moreover,
viously sustained a serious back injury                  they testified that they had always in-
                                                         terpreted this directive as requiring a
1
  Despite this language, VA’s Title 38 hiring proce-     successful medical exam prior to refer-
dures are subject to the requirements of The Rehabili-
tation Act of 1973.


                                                                                               2
                              OEDCA DIGEST
ral of the applicant to the NPSB for                     As a result of this case, the VA’s Office
further consideration.2                                  of General Counsel issued a formal
                                                         opinion4, which concludes that the
Such an interpretation, however, fails                   language of VA Directive 5005 per-
to comply with The Americans with                        taining to the requirement for “pre-
Disabilities Act of 1990 and EEOC’s                      employment” medical examinations
regulations and enforcement guidance                     under Title 38 could be construed as
implementing the Act.3 The regula-                       inconsistent with The Rehabilitation
tions and guidance prohibit employers                    Act. Accordingly, OGC has recom-
from making disability-related inquir-                   mended to the Veterans Health Ad-
ies or requiring medical examinations                    ministration that it revise the di-
prior to an offer of employment, even if                 rective to clarify that medical exami-
they are job-related.                                    nations are to be conducted after a job
                                                         offer has been made.
The proper procedure in this case
would have been referral to the Board
for review of the applicant’s adminis-                                          II
trative, educational, and experiential
qualifications and credentials. Then,                    EEOC JUDGE’S “COMPENSATO-
if the Board is inclined to make a job                   RY” DAMAGES AWARD HELD TO
offer, it may make such offer condi-                     BE PUNITVE RATHER THAN
tional upon successful completion of a                   REMEDIAL
medical examination, provided such
an examination is required of all en-                    This case highlights the difference be-
tering RNs.                                              tween compensatory damages and pu-
                                                         nitive damages. The former compen-
Obviously, the applicant in this case                    sate a victim for actual harm or injury
would have failed the medical exami-                     suffered as a result of unlawful con-
nation and would not have been hired,                    duct. The latter punish the wrongdoer
even if proper procedures had been fol-                  for engaging in the unlawful conduct,
lowed. Nevertheless, the facility vio-                   regardless of whether the victim suf-
lated The Rehabilitation Act when it                     fers any actual harm or injury.
required a “pre-offer” medical exami-
nation.                                                  Under Section 102 of the Civil Rights
                                                         Act of 1991, Federal employees who
2                                                        succeed in proving that they have been
  This interpretation is understandable. It would not
seem logical to someone unfamiliar with disability       the victim of unlawful discrimination
law to refer an applicant to a Board, and then make a    may be entitled to compensatory dam-
job offer following Board action, if the applicant is    ages, upon requisite proof, up to
medically unqualified to begin with. We suspect that
other VA facilities may be interpreting this directive
in a similar manner.
3
  These regulations also apply to The Rehabilitation
                                                         4
Act of 1973, which governs Federal employment.               VAOPGCADV 4-2004, 2/23/04.


                                                                                                3
                            OEDCA DIGEST
$300,000.5 Punitive damages, on the               improper because the award did not
other hand, are not available against             represent compensation for harm
governmental entities. Thus, in the               caused by the discrimination; but was,
EEO context, the Federal government               instead, nothing more than a punitive
must compensate employees for harm                sanction against the VA for having
or injuries shown to have resulted                engaged in the unlawful discrimina-
from unlawful discrimination; but it              tion. As noted by OEDCA in its ap-
cannot be “punished” by means of a                peal, the EEOC judge specifically stat-
punitive damage award for the actions             ed in his decision that “the evidence
or behavior of its employees.                     …does not establish that the discrimi-
                                                  natory conduct was the proximate
In this case, an EEOC judge found                 cause of the [employee’s] subsequent
that a VA facility had discriminated              need to seek disability retirement.”
against an employee on the basis of               The judge also noted that the employ-
disability (mental) in connection with            ee was not credible regarding his
a nonselection for a Police Officer posi-         claim for damages; and that while his
tion. After the nonselection, the em-             medical information referenced nu-
ployee’s mental condition declined sig-           merous causes and events throughout
nificantly, and he eventually accepted            his life that contributed to his mental
a disability retirement. By way of re-            state, his nonselection was not one of
lief, the judge awarded the employee              them.
back pay and nonpecuniary “compen-
satory” damages in the amount of                  Despite these findings, the EEOC
$17,500 for emotional harm.                       judge went on to state that “damages”
                                                  should be awarded because, “in view of
After reviewing the evidence of record            the flagrant and egregious manner in
and the judge’s decision, OEDCA is-               which [management] discriminated
sued a Final Order accepting and im-              against complainant in not selecting
plementing both the judge’s finding of            him for the advertised position, it is
discrimination and the back pay                   reasonable to assume, and I find, that
award; but rejecting and appealing the            the unlawful discrimination against
judge’s award of compensatory dam-                complainant exacerbated his mental
ages.                                             problems.”

 On appeal, the EEOC’s Office of Fed-             Both OEDCA and EEOC noted that
eral Operations agreed with OEDCA’s               the judge’s conclusion was incon-
Final Order and declined to award                 sistent with his findings and unsup-
damages.     The OFO agreed with                  ported by any evidence in the record.
OEDCA that the judge’s decision                   Moreover, because the judge prefaced
awarding compensatory damages was                 his conclusion by citing the “egregious”

5
  Compensatory damages are not available if the
finding of discrimination is based on age.


                                                                                        4
                              OEDCA DIGEST
nature of the discrimination6, it was                  hearing, made a statement to one of
clear that the judge’s award was a                     the complainant’s coworkers.         The
sanction designed to punish the VA for                 coworker reported the statement to
discrimination, not a remedy designed                  both the complainant and a human
to compensate the employee for harm                    resources manager. According to the
caused by the discrimination. Thus,                    coworker, the supervisor told him that
although the judge labeled the damage                  he was having his lawyer “look into”
award as “compensatory”, it was in re-                 complainant’s assets as a preliminary
ality a punitive damage award. Such                    step to filing a civil action against the
awards are not authorized in cases                     complainant. The coworker later told
where the employer is a government                     an EEO counselor that he took the
or governmental entity.                                statement to be a veiled threat against
                                                       anyone who filed EEO complaints.

                        III                            The complainant, believing he was the
                                                       victim of retaliation, filed an EEO
RETALIATION FOUND WHERE                                complaint wherein he alleged, among
SUPERVISOR     THREATENED                              other things, that the statement made
EMPLOYEE WITH A LAWSUIT.                               by the supervisor to his coworker con-
                                                       stituted retaliation per se, even though
(The following is not a VA case, but we are re-        the supervisor did not communicate
porting it because it contains an important            the threat directly to him, and even
lesson for supervisors who are accused of sexu-
al harassment.)
                                                       though the supervisor never followed
                                                       through on his threat to sue. The FAA
The facts of the case are relatively                   issued a final agency decision finding
simple. An employee (hereinafter re-                   no retaliation, arguing that the super-
ferred to as “complainant”) at the Fed-                visor did not retaliate because he took
eral Aviation Administration (FAA)                     no adverse action against the com-
testified before the Congressional Sub-                plainant (essentially a “no harm done”
committee on Aviation. During his                      defense).
testimony, he mentioned by name sev-
eral supervisors at his facility as per-               The complainant appealed the FAA
petrators of misconduct; namely, sex-                  decision to the EEOC’s Office of Fed-
ual harassment and retaliation for                     eral Operations. The OFO agreed
participating in the EEO process at                    with the complainant’s arguments and
the facility.                                          found in his favor. In its appellate de-
                                                       cision7, the EEOC noted that Title VII
One week later, one of the supervisors,                and other similar civil rights statutes
who was mentioned by name at the                       prohibit retaliation against a worker
                                                       for engaging in “protected activity.”

6                                                      7
 The judge did not explain his rationale for finding     Reed v. DOT (FAA), EEOC Appeal No. 01A05085
management’s actions in this case to be “egregious.”   (May 20, 2003)


                                                                                                  5
                      OEDCA DIGEST
The EEOC interprets these statutory        negative comments by supervisors
retaliation clauses to prohibit any ad-    about the EEO complaint process in
verse treatment that is based on a re-     general have been cited either as evi-
taliatory motive and is reasonably         dence of retaliatory intent, or as
likely to deter an individual from en-     grounds for a finding of reprisal per se
gaging in protected activity, including    because of the chilling effect of such
threats and harassment that occur in       comments.
and out of the workplace. A violation
occurs even if the supervisor ultimate-    Interestingly, the EEOC found repris-
ly takes no adverse action against the     al in this case even though the super-
employee. It is unlawful merely to at-     visor did not communicate his threat
tempt to restrain or interfere with the    directly to the complainant. The ra-
individual’s right to participate in the   tionale, no doubt, was the near - if not
EEO process or to oppose unlawful          absolute - certainty that the coworker
discriminatory activity.                   would mention the threat to the com-
                                           plainant.     Moreover, by communi-
The EEOC and many courts have held         cating the threat to a third party, the
that threats to file lawsuits in re-       supervisor was effectively threatening
sponse to an individual’s EEO protect-     not only the complainant, but also
ed activity constitute retaliation per     others in the office, as evidenced by
se.    The reason, of course, is the       the coworker’s remark to the EEO
chilling effect such threats can have      counselor that he too felt threatened
on the free exercise of rights granted     by the supervisor’s comment.
by law. Individuals confronted with
such threats must weigh the risk of
incurring the substantial cost involved                      IV
in defending themselves in the civil
action against the desirability of ob-     RACIAL HARASSMENT OF SUB-
taining a remedy for the alleged dis-      ORDINATE EMPLOYEE RESULTS
crimination.                               IN FINDING AGAINST THE VA

Supervisors are cautioned that any         The complainant, an Animal Caretak-
attempt, however subtle, to interfere      er since 1988, alleged numerous inci-
with or restrain the free exercise of      dents of a racially harassing nature
EEO rights may result in a finding of      occurring over a period of several
retaliation. In addition, as a general     years. He also alleged that many of
rule, supervisors would be well-           these incidents occurred because he is
advised not to mention the fact that       an African-American male and in re-
an individual has filed an EEO com-        taliation for his complaints about ra-
plaint, as the EEOC has frequently         cial harassment.
found such comments to constitute ev-
idence of a retaliatory motive. Even


                                                                                 6
                      OEDCA DIGEST
Some of the incidents involved racially    No action was taken. In 1996, he con-
derogatory and insulting comments          tacted an EEO Counselor, who dis-
and epithets. Other incidents had ra-      cussed the problem with management
cial overtones, such as his supervisor     officials. Again, no action was taken.
bringing a cotton plant to his office      In 1997, he complained to the former
and telling him to stop complaining        Chief of Staff for Research and the
about discrimination and “think about      former Systems Specialist (retired).
how lucky you are.” Other examples         Once again, no action was taken.
of the supervisor’s behavior included
telling coworkers that the complainant
was stalking a white female employee;                        V
drawing pictures depicting African-
Americans in an unfavorable light;         EMPLOYEE NOT ENTITLED TO
and allowing circulation of a drawing      ACCOMMODATION OF CHOICE
of KKK clansmen surrounding the
complainant.                               A part-time Food Service Worker sus-
                                           tained an on-the-job injury involving
Although the supervisor denied that        his back, shoulder, and elbow. After a
the incidents occurred, OEDCA con-         six-month absence, he returned to du-
cluded that the preponderance of the       ty, subject to certain physical re-
evidence in the record supported the       strictions, which included no bending
complainant’s claims. One witness, a       or stooping and no lifting of more than
coworker, corroborated several of the      two pounds continuously or four
allegations, and another witness testi-    pounds intermittently.
fied that the complainant frequently
told her about the supervisor’s racist     After temporarily performing light du-
behavior. One witness testified that       ty assignments in the Office of Human
she witnessed a hostile environment,       Resources, he was given light duty as-
but was reluctant to be more specific      signments in the domiciliary kitchen.
out of fear for her job. Moreover,
OEDCA concluded that the supervisor        The complainant objected to his as-
lacked credibility because of his incon-   signed tasks, claiming that they ex-
sistent testimony.                         ceeded his medical restrictions.
                                           Cleaning the salad bar required bend-
OEDCA further concluded that the VA        ing and stooping, and carrying card-
was liable, as it failed to prevent fur-   board boxes to the garbage violated
ther harassment, despite being ad-         his lifting restriction.
vised of the problem on numerous oc-
casions. Complainant first reported        The preponderance of the evidence,
the racial hostility to the former Asso-   however, demonstrated that all of the
ciate Chief of Staff for Research (de-     complainant’s light duty tasks, with
ceased) in 1990, and again in 1994.        the exception of cleaning the salad


                                                                                7
                      OEDCA DIGEST
bar, could be performed without vio-       ing the accommodation has the ulti-
lating the specified medical re-           mate discretion to choose between ef-
strictions. As soon as the complainant     fective accommodations.8
objected to cleaning the salad bar,
management eliminated that task
from his duty list.                                              VI

OEDCA concluded that, while the            OEDCA’S    REJECTION   OF
complainant was a qualified individu-      JUDGE’S FINDING OF SEX-
al with a disability, management had       BASED WAGE DISCRIMINATION
satisfied its obligation to provide him    UPHELD BY EEOC
with a reasonable accommodation.
Dissatisfied with OEDCA’s decision,        The Equal Employment Opportunity
the complainant appealed. On appeal        Commission recently affirmed a Final
he argued that the accommodation           Order issued by OEDCA wherein it
was insufficient because he had ex-        rejected an EEOC judge’s decision that
pressed a preference to be placed in       found an Equal Pay Act violation in-
the “Meet and Greet” program rather        volving six licensed practical nurses
than in the kitchen.                       (LPNs). The judge issued her decision
                                           without holding a hearing.
The EEOC rejected the complainant’s
argument and affirmed OEDCA’s find-        Six female LPNs filed a discrimination
ing of no discrimination. In so doing,     complaint alleging that they were be-
EEOC noted that The Rehabilitation         ing paid less than a male LPN [here-
Act of 1973 and its implementing           inafter “comparator”] despite having
regulations do not require an employer     duties and responsibilities substan-
to provide an employee’s preferred ac-     tially equal to those of the comparator.
commodation as long as the employer
provides an effective accommodation.       The medical center hired the compara-
If there are two possible reasonable       tor in September 2000 as an LPN, GS-
accommodations and one costs more or       6, Step 9, which amounted to an an-
is more difficult or burdensome, the       nual salary of $33,238.00. The six
employer may choose the less costly or     complainants were hired between
less burdensome alternative, as long       1982 and 1998, some at the GS-5 level
as it is effective. The employer is not    and some at the GS-6 level. At the
required to show that it would be an       time of the comparator’s hire, five of
undue hardship to provide the more         the six complainants were making less
expensive or burdensome alternative.       than the comparator’s starting salary.
If more than one accommodation is ef-
fective, the preference of the individu-
al should be given primary considera-      8
                                             See, Enforcement Guidance on Reasonable Ac-
tion. However, the employer provid-        commodation and Undue Hardship under the Ameri-
                                           cans with Disabilities Act, Q&A 9 (10/17/02).


                                                                                         8
                      OEDCA DIGEST
In response to alleged Equal Pay Act        persuasively demonstrated that the
violations, facility officials presented    comparator’s higher salary rate was
an affirmative defense; i.e., that the      based on a legitimate factor other than
pay differentials were based on a legit-    sex. All six complainants appealed
imate factor other than sex. Specifi-       OEDCA’s Final Order, but the EEOC’s
cally, the facility noted that there had    Office of Federal Operations affirmed
been an LPN shortage during the pre-        the Final Order, finding no EPA viola-
ceding two to three year period, and        tion and no intent to discriminate on
that it was having difficulty attracting    the basis of gender.
well-qualified LPNs. Initially, the fa-
cility had offered the comparator a job     The Commission found that three of
at the GS-5 level, but he rejected the      the six complainants had failed to es-
offer, as it was less than his then-        tablish even a prima facie case, be-
current salary in the private sector.       cause one of them was earning more
He thereafter requested a comparable        than the comparator at the time of the
salary, and the facility agreed, but on-    comparator’s hire, and two of them
ly after (1) confirming his private sec-    (both GS-5s) had jobs whose skill, ef-
tor salary, (2) requesting and obtain-      fort, and responsibility were not com-
ing additional information from the         parable to those of the comparator.
comparator regarding his qualifica-
tions and experience, and (3) deter-        The Commission found that the re-
mining that he was qualified for the        maining three complainants did estab-
GS-6 level based on the additional in-      lish a prima facie case because, like
formation he provided.                      the comparator, they were functioning
                                            at the GS-6 level in comparable jobs,
The EEOC administrative judge con-          yet were making less than the com-
cluded from the above facts that an         parator’s starting salary at the time
Equal Pay Act violation had occurred.       he was hired.
Specifically, she found that the com-
parator was not better qualified than       The Commission next concluded that
the six complainants in terms of quali-     OEDCA was correct in finding that
fications or skills; that the jobs in-      the pay differentials were justified
volved similar working conditions and       based on the LPN shortage and the
were substantially equal in terms of        need the match the comparator’s pri-
skill, effort and responsibility; and       vate sector salary. The complainants
that the facility had initially qualified   did not dispute the existence of the
the comparator only for a GS-5 level        shortage. In fact, one of them conced-
position.                                   ed in her affidavit that there was such
                                            a shortage. Moreover, the record indi-
After reviewing the record, OEDCA           cated that the problems caused by the
concluded that the judge’s analysis         shortage were exacerbated by recent
was incorrect and that the facility had     staffing changes that resulted in a re-


                                                                                 9
                        OEDCA DIGEST
duction in the number of registered        A finding of reprisal does not neces-
nurses and a corresponding increase        sarily require an adverse action
in the need for LPNs. In addition, the     against an employee, as the manager
evidence confirmed that the facility       in the following case discovered.
had five LPN vacancies for which it
had been recruiting aggressively for       The complainant applied for the posi-
well over a year prior to the compara-     tion of Supervisory IT specialist. The
tor’s hire.                                applicants were referred to an inter-
                                           view panel consisting of subject matter
Finally, the Commission found no evi-      experts who interviewed the appli-
dence to support the judge’s finding       cants using performance-based inter-
that the facility had intentionally dis-   viewing techniques. The panel then
criminated on the basis of gender.         recommended the person whom they
                                           considered to be the best-qualified ap-
The facts of this case are not uncom-      plicant to the selecting official (SO).
mon. Many Equal Pay Act claims filed       The SO accepted the panel’s recom-
against the VA stem from pay differ-       mendation, and the complainant was
entials caused by recruiting difficul-     later notified of his nonselection. The
ties and the need to match private sec-    complainant filed an EEO complaint
tor salaries. Such differentials can       alleging that he was better qualified
obviously cause morale problems.           than the selectee was, and that his
Nevertheless, the Equal Pay Act does       race and prior EEO complaint activity
permit employers to consider prior or      (i.e., reprisal or retaliation) were the
current salary along with market de-       real reasons for his nonselection.
mand; and such considerations, if rea-
sonable, will constitute “a factor other   After conducting a hearing and re-
than sex”, an affirmative defense that     viewing the evidence, an EEOC ad-
excuses the employer from liability.       ministrative judge found that the
Other affirmative defenses available       complainant’s qualifications were not
under the Act include differentials        clearly superior, and that the inter-
based on a seniority system, a merit       view panel’s recommendation was
system, or a system based on quantity      supported by a preponderance of the
or quality of production.                  credible evidence and was not influ-
                                           enced by the complainant’s race or
                                           prior EEO complaint activity. Moreo-
                  VII                      ver, the evidence showed that the SO,
                                           as a matter of practice, always accept-
ADVISING INTERVIEW PANEL                   ed the recommendation of an inter-
OF EMPLOYEE’S EEO COM-                     view panel when making selections.
PLAINT FOUND TO BE REPRIS-                 Thus, the interview panel was always
AL “PER SE”                                the de facto decision maker.




                                                                                10
                      OEDCA DIGEST
These findings notwithstanding, the         action was actually influenced by a re-
judge went on to find that the De-          taliatory motive.
partment engaged in reprisal “per se”
because of a comment made by the se-        For example, a mere comment by a
lecting official to two of the interview    management official to an employee
panel members prior to the interviews;      that he does not appreciate EEO com-
namely, that the complainant had            plaints being filed against his organi-
previously filed an EEO complaint.          zation would be actionable (i.e., would
The testimony of two of the panel           state a claim of reprisal), even if no
members indicated that the SO had           adverse actions ensue. The reason is
mentioned this fact to them at some         the likelihood that such a statement
point prior to the interviews. They al-     will deter employees from the exercise
so, testified, however, that the SO’s       of their EEO rights.
comment in no way influenced their
recommendation, and the judge found         Of course, if there is no adverse action
their testimony to be credible and          involved, or no evidence that an ad-
supported by persuasive evidence in         verse action was influenced by such a
the record.                                 statement, the relief available to an
                                            individual who prevails on such a
So, if the panel’s recommendation was       claim may be limited.
not influenced by the complainant’s
prior EEO activity, why the finding of      As we have noted in several previous
reprisal? The answer is that the SO’s       editions of the OEDCA Digest, manag-
comment to the panel members could          ers should avoid making comments
have influenced their recommenda-           about the EEO complaint process, or
tion, and such a comment, in itself, is     about employees who utilize that pro-
sufficient to support a finding of re-      cess, as such comments could result in
prisal “per se” (i.e., a technical find-    a finding of reprisal per se, or might be
ing). Contrary to the rulings of sever-     used as evidence in support of a find-
al Federal appellate courts, the            ing that retaliation was the motivat-
EEOC’s regulatory guidance on re-           ing factor behind an adverse action.
prisal (retaliation) currently permits a
finding of reprisal even in the absence
of an adverse action influenced by re-                         VIII
taliatory motive.       In other words,
where the conduct of an official could      ROMANCING SUBORDINATES IS
have a chilling effect on the exercise of   RISKY BUSINESS
rights under civil rights laws, a find-
ing of reprisal per se is permitted, even   The following article is reproduced with
if there is no adverse action involved,     permission of “FEDmanager”, a weekly e-mail
                                            newsletter for Federal executives, managers,
or there is no evidence that an adverse     and supervisors published by the Washington,
                                            D.C. law firm of Shaw, Bransford, Veilleux,



                                                                                     11
                       OEDCA DIGEST
and Roth, P.C. Although Valentine’s Day has   able situation in the office, but the
come and gone, the advice contained in this   former romantic partner/subordinate
article is nonetheless timely.
                                              employee could later file a sexual har-
                                              assment complaint against the man-
With the approach of Valentine’s Day,
                                              ager, especially if the manager ap-
it’s a good idea to review some of the
                                              pears to be giving that employee less
guidelines for managers and supervi-
                                              favorable treatment after the change
sors when it comes to workplace ro-
                                              in the romantic relationship. On the
mantic relationships.      Contrary to
                                              other hand, if the manager is the one
popular belief, there is no specific law
                                              left unhappy, then the manager, ei-
prohibiting federal managers from
                                              ther subconsciously or intentionally,
having romantic relationships with
                                              may take an adverse action against
their subordinate employees.
                                              the subordinate to retaliate against
                                              the subordinate ending the relation-
With that said, though, managers
                                              ship.
need to tread carefully and use com-
mon sense. Romantic relationships
                                              Finally, whether the romantic rela-
between supervisors and subordinates
                                              tionship is brewing, ongoing, or over,
are generally a bad idea. They can
                                              it is often hard for people to complete-
lead to inquiries by higher-level man-
                                              ly leave the romantic relationship out-
agers and to serious perception prob-
                                              side of the workplace, which could ex-
lems within the workplace. For in-
                                              pose the manager to potential liabili-
stance, if the manager’s other subor-
                                              ties. With that in mind, managers
dinates learn of the relationship, they
                                              and subordinates should keep their
may think that the manager’s roman-
                                              interactions on a professional basis. If
tic partner is receiving preferential
                                              a relationship develops with a subor-
treatment, such as higher perfor-
                                              dinate, it is a good idea for either the
mance appraisal ratings, performance
                                              manager or subordinate to seek a re-
awards, or promotions.       Also, the
                                              assignment to avoid any questions. In
manager may be slow in taking disci-
                                              fact, some agencies require such sepa-
plinary action if a romantic part-
                                              rations to occur if a relationship devel-
ner/subordinate employee engages in
                                              ops.
misconduct. All of this could lead to
an embarrassing administrative in-
                                              The bottom line is that workplace ro-
vestigation, EEO complaints, and/or
                                              mances between bosses and their
discipline prompted by the manager’s
                                              workers carry legal and professional
other employees feeling that they are
                                              entanglements (but not prohibitions)
being treated differently.
                                              and are best avoided.
Moreover, managers need to think
about what could happen if the ro-
mantic relationship sours or ends.
                                                                 IX
Not only could it cause an uncomfort-


                                                                                    12
                     OEDCA DIGEST
                                                should treat voluntary disclo-
QUESTIONS    AND   ANSWERS                      sures;
ABOUT    EPILEPSY   IN THE                     what types of reasonable ac-
WORKPLACE       AND    THE                      commodations employees with
AMERICANS WITH DISABILITIES                     epilepsy may need;
ACT (ADA)                                      how an employer should handle
                                                safety concerns about appli-
                                                cants and employees with epi-
Introduction                                    lepsy; and
                                               how employers can ensure that
The Americans with Disabilities Act             no employee is harassed be-
(ADA) is a federal law that prohibits           cause of epilepsy or any other
discrimination against individuals              disability.
with disabilities. Title I of the ADA
covers employment by private employ-     General Information About Epi-
ers with 15 or more employees as well    lepsy
as state and local government employ-
ers of the same size. Section 501 of     About 2.3 million people in the United
the Rehabilitation Act provides the      States or one percent of the population
same protections for federal employees   have some form of epilepsy, with more
and applicants for federal employ-       than 180,000 new cases diagnosed
ment. In addition, most states have      each year in Americans of all races
their own laws prohibiting employ-       and ages.(2) Epilepsy is a general term
ment discrimination on the basis of      that includes various types of seizures.
disability. Some of these state laws     A seizure happens when abnormal
may apply to smaller employers and       electrical activity in the brain causes
provide protections in addition to       an involuntary change in body move-
those available under the ADA.           ment or function, sensation, aware-
                                         ness, or behavior. People diagnosed
The U.S. Equal Employment Oppor-         with epilepsy have had more than one
tunity Commission (EEOC) enforces        seizure, and they may have had more
the employment provisions of the         than one kind of seizure. A seizure
ADA. This document explains how          can last from a few seconds to a few
the ADA might apply to job applicants    minutes. Some individuals recover
and employees with epilepsy.(1) Topics   immediately from a seizure, while
discussed include:                       others may be dazed and sleepy for a
    when epilepsy is considered a       period of time following a seizure. The
      disability under the ADA;          severity of epilepsy and the type of
    when an employer may ask an         seizure vary from person to person.(3)
      applicant or employee questions    For most people with epilepsy, no sin-
      about epilepsy and how it          gle cause has been determined. Sei-
                                         zures may result from illness (includ-


                                                                              13
                       OEDCA DIGEST
ing high fever), head trauma, stroke,        ees with epilepsy will use a lot of sick
brain tumor, poisoning, infection, in-       leave.    Workplace insurance rates,
herited conditions, brain disorders, or      however, are determined by how haz-
problems during fetal development.           ardous the type of work is and by an
                                             employer's overall claims record in the
Individuals with epilepsy successfully       past, not by the physical condition of
perform all types of jobs, including         individual employees. There is no evi-
heading corporations, teaching and           dence that people with epilepsy are
caring for children, and working in re-      more prone to accidents on the job
tail and customer service positions.         than anyone else. Finally, because
Individuals with epilepsy also can per-      medications usually can control sei-
form jobs that might be considered           zures for most people, they do not need
"high-risk," such as police officer, fire-   to take time off from work because of
fighter, welder, butcher, and construc-      their epilepsy.
tion worker. Yet, many employers
wrongly assume that people with epi-         1. When is epilepsy a disability
lepsy automatically should be exclud-        under the ADA?
ed from certain jobs.(4) For example,
many employers believe that anyone           Epilepsy is a disability when it sub-
with epilepsy cannot safely operate          stantially limits one or more of a per-
certain types of machinery, drive, or        son's major life activities. Major life
use computers.(5) The reality is that        activities are basic activities that an
because antiseizure medications and          average person can perform with little
other treatment methods totally con-         or no difficulty, such as walking, see-
trol seizures for more than half of the      ing, hearing, speaking, breathing, per-
people with epilepsy, many employers         forming manual tasks, caring for one-
do not know when someone in the              self, learning, and working. Major life
workplace has this condition. Some           activities also include thinking, con-
people whose epilepsy is not complete-       centrating, interacting with others,
ly controlled experience a sensation or      reproduction, and sleeping.
warning called an "aura" that lets
them know that they are about to             Epilepsy may be a disability because
have a seizure. Many other people            of limitations that occur as the result
with epilepsy only have seizures while       of seizures or because of side effects or
asleep (nocturnal seizures) or seizures      complications that can result from
that do not cause loss of consciousness      medications used to "control" the con-
or motor control.                            dition.

Some employers also fear hiring indi-           Example: A court concluded that an
viduals with epilepsy because they are       individual who had brain surgery to
concerned about higher workplace in-         control seizures, but still continued to
surance rates or believe that employ-        experience two or three seizures per


                                                                                   14
                      OEDCA DIGEST
month, was an individual with a disa-
bility because she was substantially        Finally, epilepsy is a disability when it
limited in several major life activities,   does not significantly affect a person's
such as walking, seeing, hearing,           everyday activities, but the employer
speaking, and working, while having a       treats the individual as if it does.
seizure and often was limited in caring
for herself (sometimes for more than a          Example: An employer who refuses
day) following particularly severe sei-     to hire someone with epilepsy because
zures.                                      it assumes the individual is incapable
                                            of working without hurting himself or
   Example: Some individuals take           others regards the individual as hav-
drugs that control their seizures but       ing a disability.
make them drowsy, unable to concen-
trate, or unable to sleep. An individu-     Under the ADA, the determination of
al who is substantially limited in ma-      whether an individual has a disability
jor life activities such as sleeping,       is made on a case-by-case basis.
thinking, concentrating, or caring for
himself as a result of these side effects
would have a disability under the           Obtaining, Using, and Disclosing
ADA.                                        Medical Information

Epilepsy also may be a disability be-          Applicants
cause it was substantially limiting
some time in the past (i.e., before sei-    The ADA limits the medical infor-
zures were controlled).                     mation that an employer can seek
                                            from a job applicant. An employer
   Example: A job applicant has had         may not ask questions about an appli-
epilepsy for five years. For the past       cant's medical condition or require an
three years she has been seizure-free,      applicant to take a medical examina-
but prior to that she experienced se-       tion before it makes a conditional job
vere and unpredictable seizures. As a       offer. This means that an employer
result, she had to move back home           cannot ask an applicant questions
with her parents because she could not      such as:
live alone, she was unable to drive,
and rarely socialized with friends be-            whether she has epilepsy or sei-
cause she feared having a seizure in               zures;
public. Even if the individual's epilep-          whether she uses any prescrip-
sy is not now substantially limiting, it           tion drugs; or
substantially limited major life activi-          whether she ever has filed for
ties such as caring for herself and in-            workers' compensation or was
teracting with others in the past. This            injured on a job.
individual has a record of a disability.


                                                                                  15
                      OEDCA DIGEST
After making a job offer, an employer      If an applicant voluntarily discloses
may ask questions about an appli-          that she has epilepsy, an employer on-
cant's health and may require a medi-      ly may ask two questions: whether she
cal examination as long as it treats all   needs a reasonable accommodation,
applicants the same.                       and if so, what type. The employer
                                           also must keep any information an
2. Does the ADA require an appli-          applicant discloses about her medical
cant to disclose that she has epi-         condition confidential. (See "Keeping
lepsy or some other disability be-         Medical Information Confidential" on
fore accepting a job offer?                p. 19.)

No, the ADA does not require appli-           Example: An individual applies for
cants to disclose that they have epi-      a data clerk position. She tells the in-
lepsy or another disability unless they    terviewer that she does not have a
will need a reasonable accommodation       driver's license due to epilepsy and
for the application process. Some in-      will need a flexible schedule because
dividuals with epilepsy, however,          public transportation is not always re-
choose to disclose their condition to      liable.(6) She also mentions that she
eliminate any surprise should a sei-       has not had a seizure in more than six
zure occur in the workplace. Often the     months. The interviewer may ask the
decision to disclose depends on the        applicant additional questions about
type of seizure a person has, the need     her requested accommodation, such as
for assistance during or after a sei-      how early she can start to work and
zure, the frequency of seizures, and       how many hours she can work each
the type of work for which the person      day, but cannot ask for details about
is applying.                               her epilepsy, such as how long she has
                                           had epilepsy or whether she has had
Sometimes the decision to disclose de-     to miss work in the past because of her
pends on whether an individual will        condition.
need a reasonable accommodation to
perform the job. A person with epilep-     4. What should an employer do
sy, however, may request an accom-         when it learns that an applicant
modation after becoming an employee        has epilepsy after he has been of-
even if she did not ask for one when       fered a job?
applying for the job or after receiving
the job offer.                             The fact that an applicant has epilep-
                                           sy may not be used to withdraw a job
3. May an employer ask any follow-         offer if the applicant is able to perform
up questions if an applicant vol-          the fundamental duties ("essential
untarily reveals that she has epi-         functions") of a job, with or without
lepsy?                                     reasonable accommodation, without
                                           posing a direct threat to safety. ("Rea-


                                                                                 16
                      OEDCA DIGEST
sonable accommodation" is discussed        chef, the employer may not withdraw
in Questions 10 -15. "Direct threat" is    the job offer.
discussed in Questions 5, 6, 16, and          Employees
17.) The employer, therefore, should
evaluate the applicant's present abil-     5. When may an employer ask an
ity to perform the job effectively and     employee if epilepsy, or some other
safely. After an offer has been made,      medical condition, may be affect-
an employer also may ask the appli-        ing her ability to do her job?
cant additional questions about his
epilepsy, such as whether he takes         An employer may ask questions or re-
any medication; whether he still has       quire an employee to have a medical
seizures and, if so, what type; how        examination only when it has a legit-
long it takes him to recover after a       imate reason to believe that epilepsy,
seizure; and/or, whether he will need      or some other medical condition, may
assistance if he has a seizure at work.    be affecting the employee's ability to
                                           do her job, or to do it safely.
The employer also could send the ap-
plicant for a follow-up medical exami-        Example: Several times during the
nation or ask him to submit documen-       past three months, a supervisor has
tation from his doctor answering ques-     observed a newly hired secretary star-
tions specifically designed to assess      ing blankly, making chewing move-
the applicant's ability to perform the     ments with her mouth, and engaging
job's functions and to do so safely.       in random activity. On these occa-
                                           sions, the secretary has appeared to be
   Example: An experienced chef gets       unaware of people around her and has
an offer from a hotel resort. During       not responded when the supervisor
the post-offer medical examination, he     has asked if she was okay. The secre-
discloses that he has had epilepsy for     tary has no memory of these incidents.
ten years. When the doctor expresses       She also has seemed confused when
concern about the applicant's ability to   the supervisor asked her to make cor-
work around stoves and use sharp           rections on documents she (the secre-
utensils, the applicant explains that      tary) recently typed. The supervisor
his seizures are controlled by medica-     may ask the secretary whether a med-
tion and offers to bring information       ical condition, such as epilepsy, is af-
from his neurologist to answer the         fecting her ability to perform the es-
doctor's concerns. He also points out      sential functions of her job.
that he has worked as a chef for seven
years without incident. Because there      On the other hand, when an employer
is no evidence that the applicant will     does not have a reason to believe that
pose a significant risk of substantial     a medical condition is causing an em-
harm while performing the duties of a      ployee's poor job performance, it may
                                           not ask for medical information but


                                                                                17
                       OEDCA DIGEST
should handle the matter as a perfor-         Yes, if the employer has a reasonable
mance problem.                                belief that the employee may be una-
   Example: Lately, a normally relia-         ble to perform her job or may pose a
ble receptionist with epilepsy has been       direct threat to herself or others.
missing work on Mondays and leaving           However, the employer may obtain on-
work early on Fridays. The supervisor         ly the information needed to make an
noticed these changes soon after the          assessment of the employee's present
receptionist's fiancé moved to another        ability to perform her job and to do so
state. The supervisor can ask the re-         safely.
ceptionist about her attendance prob-
lems but may not ask her about her               Example: A pool cleaner called his
epilepsy.                                     supervisor on Monday morning and
                                              told him he was taking sick leave be-
An employer also may ask an employ-           cause he had a seizure over the week-
ee about epilepsy when it has a reason        end -- his second in six months. Given
to believe that the employee may pose         the safety risks associated with the
a "direct threat" (i.e., a significant risk   pool cleaner's job, the employer may
of substantial harm) to himself or oth-       ask him to have a medical exam or
ers. An employer should make sure             provide medical documentation indi-
that its safety concerns are based on         cating that he can safely perform his
objective evidence and not general as-        job without posing a direct threat be-
sumptions. (See also section below on         fore allowing him to return to work.
"Concerns About Safety.")
                                                 Example: A cashier, who has occa-
   Example: A line cook with epilepsy         sional nocturnal seizures, took two
had three seizures in his first six           weeks off to adjust to a new medica-
weeks on the job. Although the cook           tion. She works the day shift and
did not injure himself or anyone else         never has been late for work, never
during his seizures, the employer may         has had difficulty performing her du-
send him for a medical examination or         ties, and never has had a seizure on
ask him to submit documentation from          the job. The employer may not require
his doctor indicating that he can safely      the cashier to have a medical exami-
perform his job, which requires him to        nation or ask her for medical docu-
work around flat top grills, hot ovens,       mentation before allowing her to re-
and fryers with boiling oil.                  turn to work because there is no indi-
                                              cation that her epilepsy will prevent
6. May an employer require an em-             her from doing her job.
ployee on leave because of epilepsy
to have a medical exam or provide                Example: A budget analyst with
documentation before allowing her             epilepsy has a seizure at work. She
to return to work?                            explains to her manager that following
                                              a seizure she is typically very tired


                                                                                  18
                      OEDCA DIGEST
and needs to rest for several hours.               ble accommodation or meet an
She says that she will be fine the next            employee's work restrictions;
morning and will be back at work, but             to first aid and safety personnel
asks if she could call someone to drive            if an employee would need
her home and take off for the rest of              emergency treatment or require
the day. Because there is no reason to             some other assistance if she had
believe that the analyst will be unable            a seizure at work;(8)
to do her job or will pose a safety risk,         to individuals investigating
the employer may not require her to                compliance with the ADA and
submit a doctor's note clearing her to             similar state and local laws;
return to work the next day.                       and,
                                                  as needed for workers' compen-
7. Are there any other instances                   sation or insurance purposes
when an employer may ask an em-                    (for example, to process a
ployee about epilepsy?                             claim).

An employer also may ask an employ-         8. May an employer explain to oth-
ee about epilepsy when the employee         er employees that their co-worker
has requested a reasonable accommo-         is allowed to do something that
dation because of his epilepsy or as        generally is not permitted (such as
part of a voluntary wellness pro-           have more breaks) because he has
gram.(7) In addition, an employer may       epilepsy?
ask an employee with epilepsy to justi-
fy the use of sick leave by providing a     No. An employer may not disclose
doctor's note or other explanation, as      that an employee has epilepsy or is
long as it requires all employees to do     receiving a reasonable accommoda-
so.                                         tion. However, an employer certainly
                                            may respond to a question about why
Keeping    Medical        Information       a co-worker is receiving what is per-
Confidential                                ceived as "different" or "special"
                                            treatment by emphasizing that it tries
With limited exceptions, an employer        to assist any employee who experienc-
must keep confidential any medical          es difficulties in the workplace. The
information it learns about an appli-       employer also may find it helpful to
cant or employee. An employer, how-         point out that many of the workplace
ever, under certain circumstances may       issues encountered by employees are
disclose to particular individuals that     personal and it is the employer's policy
an employee has epilepsy:                   to respect employee privacy.

      to supervisors and managers, if      9. If an employee has a seizure at
       necessary to provide a reasona-      work, may an employer explain to




                                                                                 19
                     OEDCA DIGEST
other employees or managers that          ical Information Confidential" above
the employee has epilepsy?                for the only circumstances in which an
                                          employer may disclose that an em-
No.    Although the employee's co-        ployee has epilepsy.)
workers and others in the workplace
who witness the seizure naturally may     Accommodating Employees with
be concerned, an employer may not         Epilepsy
reveal that the employee has epilepsy.
Rather, the employer should assure        The ADA requires employers to pro-
everyone present that the situation is    vide adjustments or modifications to
under control.    The employer also       enable people with disabilities to enjoy
should follow the employee's plan of      equal employment opportunities un-
action if one has been created. (See      less doing so would be an undue hard-
footnote 8.)                              ship (i.e., a significant difficulty or ex-
                                          pense). Accommodations vary depend-
    Example: During a staff meeting,      ing on the needs of an individual with
an attorney's arm and leg suddenly        a disability. Not all employees with
start jerking. Although she appears       epilepsy will need an accommodation
awake, she does not say anything.         or require the same accommodation,
When another employee asks whether        and most of the accommodations a
he should call an ambulance, a man-       person with epilepsy might need will
ager calmly explains that no first aid    involve little or no cost.
is necessary and that the attorney will
be okay in a few minutes. He ad-          10. What types of reasonable ac-
journs the meeting and stays with the     commodations may employees with
attorney until she recovers from her      epilepsy need?
seizure.
                                          Some employees may need one or
An employer also may allow an em-         more of the following accommodations:
ployee voluntarily to tell her co-           breaks to take medication
workers that she has epilepsy and            leave to seek treatment or ad-
provide them with helpful infor-                just to medication (9)
mation, such as how to recognize when        a private area to rest after hav-
she is having a seizure, how long her           ing a seizure
seizures generally last, what, if any-       a rubber mat or carpet to cush-
thing, should be done if she has a sei-         ion a fall
zure, and how long it generally takes        adjustments to work schedules
her to recover. However, even if an
employee voluntarily discloses that          Example: A library schedules em-
she has epilepsy, an employer is lim-     ployees to work eight-hour shifts start-
ited in sharing this information with     ing as early as 8:00 a.m. and as late as
others. (See section on "Keeping Med-     1:00 p.m. A librarian who has epilep-


                                                                                  20
                      OEDCA DIGEST
sy and experiences nocturnal seizures,      Other employees with epilepsy may
which leave her tired in the early          need:
morning, requests that her shifts start
in the late morning or early afternoon.           to bring a service animal to
The employer determines that because               work (10)
there are a sufficient number of staff            someone to drive to meetings
available between 8:00 a.m. and 10:00              and other work-related events
a.m. to respond to requests from the              to work at home
public for assistance, the accommoda-
tion can be granted without undue              Example: When a medical tran-
hardship.                                   scriber started having frequent, un-
                                            predictable seizures at work, she
      a consistent start time or a         asked her supervisor if she could work
       schedule change (e.g., from the      at home until her seizures were con-
       night shift to the day shift)        trolled. Because the transcriber can
                                            do the essential functions of her job at
   Example: A home nurse rotated            home without day-to-day supervision,
from working the 7:00 a.m to 3:00 p.m.      the employer granted her request.
shift to the midnight to 8:00 a.m. shift.
His doctor wrote a note to the em-          Although these are some examples of
ployment agency indicating that inter-      the types of accommodations employ-
ferences in the nurse's sleep were          ees with epilepsy commonly need, oth-
making it difficult for him to get          er employees may need different
enough rest and, as a result, he was        changes or adjustments. An employer
beginning to have more frequent sei-        should ask the employee requesting an
zures. If eliminating the nurse's mid-      accommodation because of his epilepsy
night rotation would not cause an un-       what is needed to do the job. There
due hardship, this would be a reason-       also are extensive public and private
able accommodation.                         resources to help employers identify
                                            reasonable accommodations. For ex-
      a checklist to assist in remem-      ample, the web site for the Job Ac-
       bering tasks                         commodation        Network     (JAN)
                                            (www.jan.wvu.edu/media/epilepsy.ht
   Example: A box packer would have         ml) provides information about many
absence seizures while packing boxes        types of accommodations for employ-
and forget what he was doing. The           ees with epilepsy.
supervisor created a checklist for each
step of the job. Now, when the box          11. Does an employer ever have to
packer has a seizure, he simply looks       reassign an employee with epilepsy
at the checklist to see what steps he       to another position?
has completed.




                                                                                 21
                     OEDCA DIGEST
Yes, reassignment may be necessary        weeks off to find out whether medica-
where an employee with epilepsy no        tion will control her seizures. This is a
longer can perform his job, with or       request for reasonable accommoda-
without reasonable accommodation,         tion.
unless the employer can show that it
would be an undue hardship. The new       A request for reasonable accommoda-
position should be equal in pay and       tion also can come from a family
status to the employee's original posi-   member, friend, health professional, or
tion, or as close as possible if no       other representative on behalf of a
equivalent position is available. The     person with epilepsy. If the employer
new position does not have to be a        does not already know that an em-
promotion, although the employee          ployee has epilepsy, the employer can
should have the right to compete for      ask the employee for verification from
promotions just like other employees.     a health care professional.

   Example: A telephone repairman         13. Does an employer have to grant
submits a note from his doctor stating    every request for a reasonable ac-
that he recently has been diagnosed       commodation?
with epilepsy and must avoid climbing
and working at heights above ground       No. An employer does not have to
level. Although the employer would        provide an accommodation if doing so
not have to "bump" another employee       will be an undue hardship. Undue
from a position to create a vacancy,      hardship means that providing the
the employer should determine             reasonable accommodation would re-
whether there is another position for     sult in significant difficulty or ex-
which the repairman is qualified that     pense. If a requested accommodation
will meet his restrictions.               is too difficult or expensive, an em-
                                          ployer still would need to determine
12. How does an employee with epi-        whether there is another easier or less
lepsy request a reasonable accom-         costly accommodation that would meet
modation?                                 the employee's needs.

There are no "magic words" that a         14. Is it a reasonable accommoda-
person has to use when requesting a       tion for an employer to make sure
reasonable accommodation. A person        that an employee takes antiseizure
simply has to tell the employer that      medicine as prescribed?
she needs an adjustment or change at
work because of her epilepsy.             No. Employers have no obligation to
                                          monitor an employee to make sure
   Example: A teacher tells her prin-     that she does not have a seizure.
cipal that she recently has been diag-    However, an employer may have to
nosed with epilepsy and needs three       provide a flexible work schedule or al-


                                                                                22
                      OEDCA DIGEST
low the employee breaks to rest or to      have a driver's license cannot be used
take medication to keep her epilepsy       to deny the individual an employment
under control.                             opportunity.

15. If an employee does not have a            Example:       College orientation
license because of epilepsy, does an       guides are hired to hand out infor-
employer have to eliminate driving         mation packets and give tours of the
from his job duties?                       campus. Occasionally, a guide also
                                           may be asked to drive prospective stu-
If driving is an essential function of a   dents to and from the airport. Not
job, an employer does not have to elim-    every guide is asked to perform this
inate it. However, an employer should      function, and there are always other
carefully consider whether driving ac-     guides available to perform the func-
tually is a job function or simply a way   tion if a particular individual is una-
of accomplishing an essential function.    vailable. Because driving is not an es-
If an accommodation is available that      sential function of the job, the college
would enable an employee with epi-         cannot refuse to hire a person to be a
lepsy to perform a function that most      guide who does not have a driver's li-
employees would perform by driving,        cense because of epilepsy but, rather,
then the employer must provide the         would have to assign someone else to
accommodation, absent undue hard-          perform that task.
ship.
                                           Concerns about Safety
    Example: A qualified sales clerk
applies for promotion to assistant         When it comes to safety, an employer
manager of a store. The employer           should be careful not to act on the ba-
promotes someone else because it           sis of myths, fears, generalizations, or
claims that an essential function of       stereotypes about epilepsy. Instead,
the assistant manager's job is driving     the employer should evaluate each in-
store receipts to the bank. Because        dividual on his knowledge, skills, ex-
depositing the receipts in a safe and      perience, and how having epilepsy af-
timely manner, not driving, is the ac-     fects him. In other words, an employ-
tual function of the job, the employer     er should determine whether a specific
should have determined whether the         applicant or employee would pose a
sales clerk could have done the job        "direct threat" or significant risk of
with a reasonable accommodation            substantial harm to himself or others
(e.g., having another employee drive       that cannot be eliminated or reduced
her or paying for her to take a taxi).     through reasonable accommodation.
                                           This assessment must be based on ob-
Similarly, if driving is a marginal (or    jective, factual evidence, including the
non-essential) function, the fact that     best recent medical evidence and ad-
an individual with epilepsy does not       vances to treat and control epilepsy.


                                                                                23
                      OEDCA DIGEST
16. When may an employer prohib-           its it from hiring anyone who has
it a person who has epilepsy from          epilepsy?
performing a job because of safety         The employer has a defense to a
concerns?                                  charge of discrimination under the
                                           ADA if a federal law prohibits it from
An employer may prohibit a person          hiring a person with epilepsy. The
who has epilepsy from performing a         employer should be certain, however,
job when it can show that the individ-     that compliance with the law actually
ual may pose a direct threat. In mak-      is required, not voluntary, and that
ing a "direct threat" assessment, the      the law does not contain any excep-
employer must evaluate the individu-       tions or waivers.
al's present ability to safely perform
the job. he employer also should con-      Harassment
sider: (1) the duration of the risk; (2)
the nature and severity of the poten-      Employers are prohibited from harass-
tial harm; (3) the likelihood that the     ing or allowing employees with disa-
potential harm will occur; and, (4) the    bilities to be harassed in the work-
imminence of the potential harm. The       place. When harassment is brought to
harm also must be serious and likely       the attention of a supervisor, the su-
to occur, not remote and speculative.      pervisor must take steps to stop it.
Finally, the employer must determine
whether any reasonable accommoda-          18. What should employers do to
tion would reduce or eliminate the         prevent and correct harassment?
risk.(11)
                                           Employers should make clear that
   Example: A tool inspector with epi-     they will not tolerate harassment
lepsy applies to be a welder for the       based on disability or on any other ba-
same company. During the past two          sis (i.e., race, sex, religion, national
years, the employee has on several oc-     origin, or age). This can be done in a
casions failed to take prescribed medi-    number of ways, such as through a
cation and has experienced sudden          written policy, employee handbooks,
and unpredictable seizures at work.        staff meetings, and periodic training.
Because of the likelihood that the em-     The employer should emphasize that
ployee would experience sudden and         harassment is prohibited and that
unpredictable seizures and the serious     employees should promptly report
consequences that would result if the      such conduct to a manager. Finally,
employee had a seizure while working       the employer should immediately con-
as a welder, the employer may deny         duct a thorough investigation of any
the employee the job.                      report of harassment and take swift
                                           and appropriate corrective action.
17. What should an employer do
when another federal law prohib-


                                                                                24
                      OEDCA DIGEST
For more information on the stand-         terns. People who are photosensitive
ards governing harassment under all        are most likely to react to lights that
of      the   EEO      laws,    see        flicker between five and 30 times per
www.eeoc.gov/policy/docs/harassmen         second. Modern computers usually
t.html.                                    operate at a higher frequency and do
                                           not tend to provoke seizures.
Footnotes                                  6. Every state licenses people with epi-
                                           lepsy to drive, though eligibility re-
1. This document is the second in a se-    quirements vary. The most common
ries of fact sheets issued by the EEOC     requirement is that individuals be sei-
that addresses a particular medical        zure free for a specified period of time
condition. The first fact sheet, Ques-     and submit a physician's evaluation of
tions and Answers About Diabetes in        their eligibility to drive safely. Some
the Workplace and the ADA, can be          states require individuals with epilep-
found                                 at   sy to submit periodic medical reports
www.eeoc.gov/facts/diabetes.html.          for as long as they remain licensed.
2. Source: Centers for Disease Control     7. The ADA allows employers to con-
(CDC),                                     duct voluntary medical examinations
www.cdc.gov/nccdphp/epilepsy/index         and activities, including obtaining
.html                                      voluntary medical histories, which are
3. For example, some seizures result       part of an employee health program as
only in small involuntary movements        long as any medical records acquired
or brief lapses of attention. In other     as part of the program are kept confi-
instances, consciousness (the ability to   dential.
react to external stimuli in a meaning-    8. Although many individuals who
ful and appropriate way) may be unaf-      have seizures do not require any first
fected, lost completely, or altered but    aid or assistance, an employee who
not lost completely. In addition, motor    might need assistance may want to
control may be partially affected (e.g.,   work with his employer to create a
a person's hand may shake or she may       plan of action that includes such in-
be alert but cannot speak) or com-         formation as: who to contact in an
pletely lost.                              emergency; warning signs of a possible
4. Many occupations have their own         seizure; how and when to provide as-
health regulations. Some federal laws      sistance; when to call an ambulance,
may prohibit an employer from hiring       etc. The employee and employer also
an individual who still has seizures or    should discuss who in the workplace
takes medication for epilepsy. See         should know this information. Some
Question 17.                               individuals also might want to ask
5. There is a rare condition called pho-   their employers for an opportunity to
tosensitive epilepsy in which seizures     educate their co-workers about epilep-
are triggered by flashing or flickering    sy to dispel any misperceptions or un-
lights or by certain geometric pat-


                                                                                25
                         OEDCA DIGEST
substantiated fears they may have
about the condition.
9. An employee with epilepsy also may
be entitled to leave under the Family
and Medical Leave Act (FMLA), which
provides up to 12 weeks of unpaid
leave for a serious health condition.
The U.S. Department of Labor enforc-
es the FMLA. For more information,
go to www.dol.gov/esa/whd/fmla.
10. Service animals are animals that
are trained to perform tasks for indi-
viduals with disabilities such as guid-
ing people who are blind, alerting peo-
ple who are deaf, pulling wheelchairs,
alerting and protecting a person who
is having a seizure, or performing oth-
er special tasks.
11. If the individual is a current em-
ployee, reasonable accommodation
must include consideration of reas-
signment to a vacant position for
which the employee is qualified.

(The above guidance was recently issued by the
EEOC and can be found on its website at
www.eeoc.gov/facts/epilepsy.html)




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