[blindlaw] Reasonable Accommodations and Government Employers

Sun Jul 8 02:07:58 UTC 2012

Hi Jo,

Unfortunately, access to classified information is one of those areas where
the EEOC has tended to hold that national security usually trumps civil
rights - not always, but often.  You might be able to argue that reasonable
accommodations would enable you to do the work, but it'll take quite a long
time before you get a decision.  In addition, you have an affirmative duty
to mitigate damages, and the agency has offered you a position.  If it is
comparable in salary, then you can still pursue a claim on the basis that
you were harmed by the change in position, but you wouldn't get any backpay
if you won unless the Program Analyst position was at a lower grade than the
IA position.  Even then, you'd only be entitled to the difference in salary
between the two positions.

You may be best served by beginning the PA position and initiating the EEO
process on the IA position.  Also, once you've entered the federal
government, it is a lot easier to move laterally than to get a position as a
member of the public.  It may be that another agency will hire you on as an
IA once you've been at the PA job for a bit.  Additionally, most agencies
allow employees to detail into other positions after they've finished their
probationary periods.  You might be able to convince your agency to allow
you to perform a detail as an IA, and if it doesn't work out during the 90
or 120 day detail, then you go back to your PA position with no harm done.

Finally, if you really want to pursue a suit on this, Stuart Simms is an
attorney at Brown Goldstein & Levy in Baltimore.  He is handling several
cases involving folks who weren't granted reasonable accommodations to do IA
work or who were discriminated against based on disability in the process of
seeking a security clearance.

Just some thoughts.

Regards,
Ronza

-----Original Message-----
From: blindlaw-bounces at nfbnet.org [mailto:blindlaw-bounces at nfbnet.org] On
Behalf Of Joe
Sent: Saturday, July 07, 2012 12:50 PM
To: blindlaw at nfbnet.org
Subject: [blindlaw] Reasonable Accommodations and Government Employers
Importance: High

Hello,

I'm hoping someone can give some guidance on a rather urgent issue.

In 2010 I was given a conditional job offer with a federal agency as an
intelligence analyst. I successfully passed the background investigation,
and in January of this year I was finally given an office assignment and
training date. I was supposed to have started my training next Monday, July
16, but this past Friday I was called by one of the agency attorneys with
the news that they did not feel I could complete the duties and
responsibilities of an IA. There are graphics used that are an essential
function of the job for which accommodations cannot be provided. Instead, I
was offered a position as management and program analyst, for which I am
grateful but still very disappointed that I left my previous career to take
a job different from what had been promised.

These are my questions:

1. There are at least two other blind IAs currently working in the agency.
When I pointed this out to the attorney, she said they had been
grandfathered into the new requirements for IAs. Is this legal? My
understanding is that either a position can be performed by all qualified
staff or it cannot. If I'm wrong, I welcome your thoughts on the issue.

2. What kind of metric is used in determining reasonable accommodations? I
do not know what percentage of my specific job assignments requires the use
of graphics, and even though I plan to educate them on the use of Braille
embossers to render certain diagrams, I would like to know to what degree
human readers can be used to meet the definition of reasonable accommodation
and to what extent I can perform the other tasks of my job.

3. Does the agency cover itself by offering an alternative position? I have
looked at both general job descriptions, and a MAPA is not a clear
substitute for an IA.

4. If I were to take the MAPA position while I try to resolve the issue of
the IA position, will I be hurting my grounds for appeal? Other than my
freelance business, I am unemployed, because I left my previous job with the
intent to start my new job shortly. I feel like this very tight timeframe is
leaving me with very little options.

5. Outside of the agency in question, what other resources may I pursue to
plead my case, and perhaps more importantly, do you think I have a case to
plead? I met all the security, suitability, and KSA requirements of the job
in question. I believe I ought to be able to go through the training
program, and allow the training to determine whether I am capable of meeting
the responsibilities as is true of all other qualified employees in the IA
program.

In short, I appreciate anyone's help in clarifying this situation. The
decision appears to be carried by the agency's EEO, so my natural option for
assistance is part of what is causing the problem. I would hate for the
position of IA to be forever closed against all future qualified blind
employees, so any referrals and/or suggestions would be very much
appreciated.

Sincerely,

Joe

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