EEOC Issues New Q&A Aimed At Increasing Federal Employment Opportunities for People With Disabilities

On August 28, 2008, the EEOC issued a new question and answer document aimed at increasing the federal employment opportunities for people with disabilities. This new publication answers frequently asked questions about what the law both allows and requires federal agencies to do with respect to the hiring and employment of individuals with disabilities.

As per Section 501 of the Rehabilitation Act of 1973 (Section 501), federal agencies are charged with promoting the hiring and retention of individuals with disabilities by becoming a model employer of individuals with disabilities and ensuring employment non-discrimination and reasonable accommodation.

Section 501 requires all agencies, regardless of their size, to have an affirmative action program plan for individuals with disabilities. Under Section 501, a “disability” means: (1) a physical or mental impairment that substantially limits one or more major life activities; (2) a record of a substantially limiting impairment; or (3) being regarded (i.e. treated) as having a substantially limiting impairment.

In January 2008, the EEOC issued a report detailing its assessment of federal agencies’ efforts in this area, and specifically suggesting improvements agencies could undertake to increase the number of federal employees with certain targeted disabilities.

This new question & answer document covers frequently asked questions ranging from Schedule A appointment authority for individuals with targeted disabilities, to the processing of employee requests for reasonable accommodations. This document is an especially helpful reference for federal employees with disabilities as it clearly outlines the obligations of federal agencies as it relates to the employment and reasonable accommodation of employees with disabilities. For more information, the question & answer document can be found at http://www.eeoc.gov/federal/qanda-employment-with-disabilities.html

If you would like to discuss your federal employment issue, please contact Ms. Whitfield for a consultation at 301.869.8774, or via the online consultation form.

This blog is not intended to provide legal advice or representation, but rather to provide very general information regarding a variety of subject areas. The viewing of the information contained on this blog does not create or establish an attorney-client relationship. Further, this information should not be relied upon without first consulting with an attorney regarding your specific situation.

MSPB Reverses Removal of Federal Employee

In September 2006, the Department of Homeland Security proposed Gilberto M. Rodriguez’s removal from his position as a senior criminal investigator for Immigration and Customs Enforcement on the charge that Mr. Rodriguez had falsified official government documents and made false statements. After a hearing at the Merit Systems Protection Board, the Administrative Judge sustained the Agency’s charges. Mr. Rodriguez requested reconsideration and on April 10, 2008, the Board found that the Agency did not prove its charges and did not sustain Mr. Rodriguez’s removal.

The Agency’s first charge alleged that while processing an undocumented alien in the Agency’s custody, Mr. Rodriguez falsified agency form I-213 by indicating a specific Assistant United States Attorney (AUSA) had declined the alien’s prosecution. Mr. Rodriguez testified that he used the duty roster to determine which AUSA he had spoken to about the prosecution of the alien. The Agency did not find Mr. Rodriguez’s response to the charges to be credible, and inferred that this lack of credibility coupled with the incorrect information, constituted circumstantial evidence that Mr. Rodriguez had knowingly supplied incorrect information.

A falsification charge contains an element of intent which must be proven by preponderance of the evidence and in consideration of the totality of the circumstances involved. To sustain a falsification charge, an agency must prove that the employee knowingly supplied incorrect information with the intent of defrauding the agency. Thus, establishing that the employee supplied incorrect information is not, by itself, enough to sustain the falsification charge.

Charges such as “improper conduct” or “failure to obey orders,” do not contain a specific intent element and the Board’s decision indicated that Mr. Rodriguez’s actions might support a charge for this type of conduct. However, the Board is unable to substitute the charge that it deems more appropriate, but is instead limited to a review of the Agency’s decision and the charges put forth by the Agency. Therefore, the Board held that the Agency had not proven the “intent” element of the charge and therefore the falsification charge could not be sustained. The Agency was ordered to cancel the removal action and to retroactively restore Mr. Rodriguez’s employment.

Federal employees who are subjected to an adverse action based upon a charge that requires intent should be aware that the agency bringing these charges against the employee will need to establish that the employee actions were intentional, not simply negligent or unintentional.

Case discussed: Rodriguez v. Dept. of Homeland Security, Docket No. DA-0752-07-0177-I-1, 2008 MSPB 85 (April 10, 2008).

If you would like to discuss your federal employment issue, please contact Ms. Whitfield for a consultation at 301.869.8774, or via the online consultation form.

This blog is not intended to provide legal advice or representation, but rather to provide very general information regarding a variety of subject areas. The viewing of the information contained on this blog does not create or establish an attorney-client relationship. Further, this information should not be relied upon without first consulting with an attorney regarding your specific situation.

EEOC Issues Report on Federal Employment of Individuals With Targeted (Severe) Disabilities

The federal government is supposed to be a “model employer” when it comes to employment practices, including the hiring of individuals with disabilities. However, the federal government has not lived up to that standard as the number of federal employees with targeted or severe disabilities has been steadily declining. In 2006, the number of federal employees with targeted disabilities was at .94%, the lowest rate in over 20 years. On January 15, 2008, the U.S. Equal Employment Opportunity Commission (EEOC) issued a report regarding strategies that federal agencies can utiliize to improve the hiring of individuals with targeted disabilities. Targeted disabilities include deafness, blindness, missing extremities, paralysis, seizure disorders, distortion or limbs or spine, mental illness and severe intellectual impairments.

In recognition of the declining number of federal employees with targeted disabilities, EEOC Commissioner Christine M. Griffin is heading the EEOC’s new Leadership for the Employment of Americans with Disabilities (LEAD) Initiative. The LEAD Initiative seeks to educate federal agencies about their obligations regarding the hiring and advancement of individuals with targeted disabilities, and to provide guidance regarding how to increase the number of federal employees with targeted disabilities.

One of the ways in which federal agencies are able to hire individuals with severe disabilities is through the Schedule A hiring authority. Using the Schedule A hiring authority, Agencies are able to hire individuals with severe disabilities noncompetitively. Eligibility for Schedule A employment is establish by the submission of proof of disability and certification of job readiness. Individuals with severe disabilities who live in Maryland can obtain this certification through the Maryland State Department of Education, Division of Rehabilitation Services (DORS). Individuals with severe disabilities can obtain more information about opportunities within the federal government by visiting the Office of Personnel Management’s (OPM) website.

This blog is not intended to provide legal advice or representation, but rather to provide very general information regarding a variety of subject areas. The viewing of the information contained on this blog does not create or establish an attorney-client relationship. Further, this information should not be relied upon without first consulting with an attorney regarding your specific situation.