[acb-hsp] FW: federal employment of disabled article

[Baracco, Andrew W]

Government Grows Disabled Worker Ranks, Struggles to Curb Disability
Discrimination
By
Mathew B. Tully, Esq
The federal government is getting better at hiring individuals with
disabilities,
but based upon my experiences with clients, I believe there is
definitely room for
improvement when it comes to how it treats such employees.
The Office of Personnel recently released a report showing that the
ranks of disabled
individuals employed by the Executive Branch rose over the year by 9
percent to 204,189
in fiscal year 2011. This growth was driven in part by President Barack
Obama's Executive
Order 13548, which was issued in July 2010 and set the goal of hiring
100,000 people
with disabilities over five years.
Just as the federal government has gotten better at hiring individuals
with disabilities,
it appears to have also improved in reducing discrimination against them
in some
regards. For example, between the 2006 and 2011 fiscal years, there were
significant
decreases in disability discrimination complaints (mental and physical
cases combined)
over issues such as: assignment of duties (down 20 percent to 377
complaints); pay
including overtime (down 18 percent to 254 complaints); medical
examinations (down
35 percent to 67); and, reassignment denials (down 40 percent to 98
complaints),
according to a Tully Rinckey PLLC analysis of data in the Equal
Employment Opportunity
Commission's Annual Reports on the Federal Work Force.
Unfortunately, not all issues of alleged discrimination followed this
downward trend.
For example, mental and physical disability discrimination complaints
over evaluations
and appraisals rose by 37 percent during the five-year period to 313
complaints.
Complaints over harassment were up 8 percent at 1,737 and reasonable
accommodations
complaints rose 10 percent to 1,217.
Posing a threat to the government's hiring goals, complaints over
appointments and
hiring also rose over the five-year period by 32 percent to 263
complaints in fiscal
year 2010. For the federal government to achieve its goal of ensuring
that the representation
of disabled individuals in the federal workforce accurately reflects
that of the
general population, it is crucial that disabled individuals assert their
rights under
the Rehabilitation Act, which is the public sector's version of the
Americans with
Disabilities Act.
The EEOC case of Sipriano v. Napolitano (2011) highlights the
discriminatory culture
in some federal offices that disabled workers must overcome. This case
involved a
Department of Homeland Security clerk who was working part-time for the
agency while
attending school. The clerk suffered from a birth defect in his right
ear and a hearing
impairment that made it hard for him to understand multiple speakers or
people not
facing him. He was also sensitive to loud noises.
One day, the clerk was suffering from a bad migraine caused by loud
noises in his
work environment and as a side effect from a recent surgery. He was
unable to locate
his supervisors, but a person in charge gave him permission to extend
his 15-minute
break by 10 minutes. Shortly after the clerk put his head down, his
supervisor passed
by him, claimed he caught the clerk sleeping on the job, and
subsequently fired him.
The clerk filed an Equal Employment Opportunity complaint claiming his
termination
was based on disability discrimination. The agency dismissed this
complaint, but
on appeal the EEOC partially reversed this decision.
While upholding the agency's dismissals of claims based upon the
creation of a hostile
work environment and the failure to provide reasonable accommodations,
the commission
found that the termination was motivated by unlawful discrimination
based upon the
fact that the agency failed to articulate a legitimate
non-discriminatory reason
for the termination during the EEOC investigation. He was awarded back
pay plus interest
and benefits from the time he was terminated up to when his temporary
appointment
was supposed to expire, and the case was remanded back to the agency for
further
investigation on the damages issues.
Federal employees who believe they have been subjected to disability
discrimination
should immediately contact a federal employment law attorney. They have
45 days after
an adverse action occurred or a request for reasonable accommodations
was denied
to contact an EEO counselor.

 

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