Reasonable Accommodation Training


MICHAEL LOONEY: Hello.
I’m Mike Looney, and I’m the disability
program manager for the Transportation
Security Administration. KENDRA M. DUCKWORTH SHOCK: And
I’m Kendra Duckworth Shock, the disability program
manager for the Department of the Air Force. MR. LOONEY: Welcome to
our training today on
reasonable accommodations. Today, we’re going to give
you a little bit of an overview of the sessions. First, we’re going to start
out and do a legal overview, looking at the laws that pertain
to reasonable accommodations and all aspects of disability. Next, we’re going to provide a
basic overview of the reasonable accommodation process and
how it would impact you in the workplace. Then, we’re going to look at the
interactive process and how that works for you and what you
really need to keep in mind when dealing with
reasonable accommodations. Now, just kinda looking
at the legal overview, here we have a picture. These individuals in this
picture are probably the pioneers for all of the
disability rights movement that we had in the United States. These are individuals that are
actually marching to help pass the ADA, or the Americans
with Disabilities Act. So, how does the disability
law – how is it developed? Well, initially we had the
Rehabilitation Act of 1973, which said that the federal
government will become a model employer for individuals with
disabilities and that agencies should give full consideration
in the hiring, placement, and advancement of qualified
individuals with mental and physical disabilities. Now, within the
Rehabilitation Act of 1973, there are four main sections,
which we’ll touch on in the next slide, that have specific
areas that they address. The next is probably one
of the biggest pieces of legislation for individuals
with disabilities, and that was the Americans
with Disabilities Act of 1990. Then, we have an executive order
that was passed in July of 2010 that really shaped how we
are hiring individuals and increasing the hiring of
individuals with disabilities in the federal government. And then last, we will
touch a little bit on the ADA Amendments Act of 2008,
or “A-D-Triple-A,”
as a lot of people call it, which definitely reshaped
the Rehabilitation Act for the federal government. So, the Rehabilitation Act
of 1973, as was amended: As I said, there are four main
sections that we focus on. The first is Section 501, which
requires affirmative action and nondiscrimination in the
employment by federal agencies in the executive branch. Now, recently, we had some
updates to Section 501 that was done by the EEOC and OPM. And they are definitely going
to reshape how we look at individuals with disabilities. The affirmative action, it’s
one of the only ways now for us to increase the hiring of
individuals with disabilities. Individuals with disabilities
is the only category we can have affirmative action plans. Now, how does that relate to
reasonable accommodations? It also increased the use of
personal assistance services within federal agencies for
individuals with disabilities, and also required a lot
more tracking of reasonable accommodations so that agencies
can better report how it is that they are accommodating
individuals with disabilities, which will help in the retention
of individuals with disabilities at federal agencies. The next is Section 503, which
deals mainly with contractors and subcontractors. But it requires the contracting
companies to have affirmative action and prohibits them from
employment discrimination of contractors. So it deals with any contractor
or subcontractor that has a contract more than $10,000. Now, with Section 503, what it
has done is it required agencies to have a 7% goal of
individuals with disabilities. So it said their entire
workforce needs to be 7% of individuals with disabilities. So that will help in our hiring
of individuals with disabilities as well, because we may find
that there are contractors with disabilities that could be
hired through noncompetitive hiring authorities into
federal positions. Section 504 states that “no
qualified individual with a disability in the United
States shall be excluded from, denied the benefits of, or be
subjected to discrimination under” any program or activity
that either receives federal financial assistance or is
conducted by any executive agency or the United
States Postal Service. So Section 504 is the main area
where we deal with reasonable accommodations, because we do
not – we cannot discriminate against individuals with
disabilities, based on 504. It requires us to also provide
reasonable accommodations in any area that is
receiving federal funding, for not only individuals with
disabilities that work for the federal government, but also
programs that may have some aspect where individuals with
disabilities have to use it. So I work for TSA, the Transportation
Security Administration. We deal a lot with Section 504,
not only with our employees, but also with the
traveling public, where we have to provide
reasonable accommodations for them when they’re going
through the screening process. Another area that has a major
impact for individuals with disabilities is Section 508 of
the Rehabilitation Act of 1973. It established requirements
for electronic and information technology that is either
developed, maintained, procured, or used by
the federal government. Section 508 requires federal
electronic and information technology to be accessible
to people with disabilities, including employees and
members of the public. So, anything that we deal
with that is electronic: our websites, any trainings that
we produce – whether they are online trainings or they are
in-person trainings if they deal with electronic information –
or any programs that we develop. Handouts, manuals – anything
that we put online or on our websites must be accessible. And when I say accessible,
they must be accessible for assistive technology. So, individuals that may be
using screen reading software, maybe using dictation software,
they need to be accessible to those type of programs so that
they are able to access them. Another area that has a big
component of being accessible is when we’re looking at hiring
individuals with disabilities and we’re using
electronic applications. We want to make sure that those
are accessible as well because if they’re not accessible, then
individuals with disabilities would not have the ability
to be able to apply for jobs. Ultimately, what Section 508
does for individuals with disabilities is it gives
them access in a world now that is based on electronics. Everything that we use
now has some type of electronic component. So Section 508 is one of
the best pieces of the Rehabilitation Act for
individuals with disabilities. Now, the Rehabilitation
Act, just in general, prohibits discrimination
on the basis of disability by the federal government,
federal contractors, and anyone that receives
federal financial assistance. So, what it does is it
ultimately protects individuals with disabilities
from discrimination, not only employees, but
individuals that need to utilize services that the federal
government provides. It requires employers to provide
reasonable accommodations to qualified applicants and
employees with disabilities, where it is needed. So, not only employees in
allowing them to perform the essential functions,
but also applicants, if they need to have access
to the application process, if they need to have
access to interviews, the Rehabilitation Act covers
them and makes sure that they are provided those
reasonable accommodations. It requires federal agencies
to establish affirmative action programs for the
hiring, advancement, and retention of individuals
with disabilities. Hopefully this new affirmative
action plan that the federal government has enacted will
allow – will continue the increased hiring of
individuals with disabilities. We had a lot of success over the
last five to eight years in the hiring of individuals with
disabilities and hopefully we can continue that with the
new guidelines and guidance on the Section 501 of
the Rehabilitation Act. The Rehabilitation Act also
prohibits employers from making improper disability-related
inquiries or requiring improper medical examinations. So, agencies only need to be
requesting medical documentation when it is consistent
with business necessity. So it is something that they
need to determine: Is there a disability that will prevent
someone from being able to do the job, or is it needed
for them – is the medical documentation needed in
determining if a reasonable accommodation is required. The Rehabilitation Act also
requires employers to keep medical information of all
employees confidential. We cannot be providing medical
documentation or medical information about any employee
or applicant to anyone in the agency. There is a “need to know” when
it comes to medical information. And usually within the
reasonable accommodation process, it is only
for individuals that are making a decision. They are the ones that
should have access to the medical information. So, we strongly recommend not
providing that information to anyone if they don’t
have a need to know. Also be careful just not
leaving it out on a desk or leaving it in
an unlocked cabinet. We want to make sure that it is
kept completely confidential. The Rehabilitation Act also
requires employers to comply with anti-harassment standards
and prohibits retaliation by employers against individuals
with disabilities because maybe they’ve filed an EEO complaint
based on the disability discrimination or based on the
fact that they haven’t received a reasonable accommodation. So individuals with disabilities
are also covered under the Rehabilitation Act for
those areas as well. Now, here I have one scenario
that we just kinda want to talk a little bit about that will
kinda give you a little bit of an understanding about
the legal aspects. So, for scenario one: Mandy
recently made a request for a schedule change
because of her disability. The reasonable accommodation
request was granted by her second-line supervisor. Her first-line supervisor, Jim,
is unhappy because he wants all of his team members to
work the same schedule. Jim threatens Mandy with a less
favorable performance appraisal or demotion unless she
foregoes the accommodation. So do you think that Jim’s
actions are a violation of the Rehabilitation Act? Why or why not? I’ll give you a second
to think about that. So, ultimately, his actions
are a violation of the Rehabilitation Act because
Mandy did request a reasonable accommodation to her
second-line supervisor, who is someone that is
in her chain of command. And based on the scenario,
we do make some assumptions, but I would assume that
making schedule adjustments, that is reasonable
accommodation. It is reasonable to expect or
to provide a schedule change. Jim just wants – her manager
just wants his employees all to work the same schedule. You know, why is that? Is it something that is
required for the position? If not, then it’s something
that can be provided as a reasonable accommodation. So ultimately, yes, he is
violating the Rehabilitation Act because he is trying to rescind
or even retaliate against Mandy for requesting a reasonable
accommodation and being provided that reasonable accommodation. So next, we have
Executive Order 13164. So, this executive order is
the main executive order when talking about reasonable
accommodations because it requires all federal agencies
to establish procedures to facilitate the provision of
reasonable accommodation. Ultimately, in order for the
Rehabilitation Act and the federal government to really
promote themselves as a model workplace, you need to have
written reasonable accommodation procedures in place and you
need to be following them. Here at the State Department,
you have reasonable accommodation
procedures in place. I strongly recommend you talk
with the Office of Civil Rights, your reasonable
accommodation office, because that is who enforces the reasonable
accommodation process. Now, within the Executive Order,
it outlined that the reasonable accommodations must be provided
in three areas: to individuals with disabilities in the
application process – so giving them access to not only
applying for a job, but interviewing and
then being brought on into a federal agency. It also requires that federal
employees with disabilities be provided with reasonable
accommodations to assist them in performing the essential
functions of the position. So that’s allowing the
individual to do the main aspects of their job. And we’ll touch a little bit
more about essential functions as we move forward
in this training. And then the last area is
allowing federal employees with disabilities to enjoy the
benefits and privileges
of employment, equal to those enjoyed by
employees without disabilities. Now, what are benefits and
privileges of employment? So, most of you work
in federal agencies. You may have a fitness
center in your office. Is it accessible? Can individuals with
physical disabilities be able to access that? If the fitness center is
providing yoga classes or other classes and you have an employee
that is deaf or hard of hearing and needs an interpreter,
are they providing an interpreter for those? If you are doing –
you have a cafeteria, you have a credit union,
again, are those accessible? Are individuals,
federal employees, are they able to access those
facilities and then be able to perform the same functions
any other employees would be provided when accessing them? Another area that people
probably don’t really think about is holiday parties
or parties in general for all employees. If you’re going out to a
restaurant and taking your entire office out to a
restaurant for a holiday party to celebrate the
holiday, do you need to make sure it’s accessible? Do you need to make sure that
if you have an employee that is deaf that needs an
interpreter, do you bring an interpreter with you? Yes, you do, because all of your
employees are being given access to this party, so you want
to make sure your employees with disabilities also
have access to that. So that’s really what we’re
talking about when we’re talking about benefits and
privileges of employment. MS. SHOCK: So Michael, equal
benefits also includes equal opportunity to training. Individuals with disabilities
are often left out of training opportunities because
of their need for reasonable accommodation. Section 501 specifically
requires us to provide access to training opportunities that
include providing reasonable accommodation for individuals
with disabilities. MR. LOONEY: Thank you for
that, Kendra – appreciate it. So, that was more about
the Executive Order. Next, we’re going to look at
the ADA Amendments Act of 2008, which ultimately expanded the
definition of disability and called for a broader coverage,
mainly because there were some court cases that narrowed the
scope of disability so much that individuals with disabilities
were not being considered individuals with disabilities
and were not being provided reasonable accommodations. So the ADA Amendments Act of
2008 said that an impairment that is episodic or in remission
is a disability if it would significantly limit a major
life activity when active. It also made sure that
disability determinations would be made without considering
mitigating measures, other than ordinary
eyeglasses or contact lenses. Now, when we look at
mitigating measures, we’re talking about any type
of device or medication that is helping an individual with a
disability deal with or maintain their disability. So if you look at someone
that’s in a wheelchair, you would consider the
mitigating measure as the wheelchair. Someone that has
a prosthetic limb, whether it’s a leg or an
arm, you would consider the prosthesis as that
mitigating measure. So you really have to look at
the individual without that measure to determine if
they have a disability. Or someone that’s taking
medication to control a psychiatric disability
or a learning disability. We would have to make a
disability determination based on how they would be able
to function without those medications or those
mitigating measures. Also, under the
ADA Amendments Act, it provided protection under
the “regarded as having a disability,” which ultimately
said that if someone is regarded as having a disability,
regardless if they have a disability or not, they would
be covered under the ADA if an adverse action
was taken against them. We also now look at if someone
has a record of an impairment or is being regarded as
having an impairment of a disability alone. It’s not sufficient
justification to provide a reasonable accommodation. So the individual will still
have to show that they have a disability and there is a need
for a reasonable accommodation. The ADA Amendments Act also
expanded the definition of major life activities, which we will
touch on a little bit more when we start talking more about
reasonable accommodations. So, reasonable
accommodations – what is it? Well, federal agencies
ultimately are required to make reasonable accommodations to
the known physical and mental limitations of an otherwise
qualified individual with a disability unless the agency
can show that the accommodation would cause undue hardship
or be a direct threat. Now, we will touch a little
bit more on undue hardship as we go further
into the training. And now I’m going to
turn it over to Kendra. MS. SHOCK: Thank you, Michael.
So now let’s talk about the nuts and bolts of
reasonable accommodation. But first of all, we need to
understand a little bit more about what is a disability. Michael’s already given you the
legal definition of disability, so it’s an individual who has
a mental or physical impairment that limits a major life
activity or has a record of an impairment or is
regarded as an impairment. Remember that the Americans with
Disabilities Act Amendments Act also expanded the definition
of disability to include bodily functions as a
major life activity. And health conditions that
are episodic or in remission are also now considered
disabilities. The reason for this was to
focus the shift from what the individual’s disability was to
focus more on nondiscrimination and reasonable accommodation. So what is a major
life activity? A major life activity is any
basic activity that the average person in the general
population can perform with little or no difficulty. Includes things such
as caring for oneself, performing manual tasks,
walking, talking, seeing, hearing, speaking, sleeping,
standing, working, lifting, bending, breathing, speaking,
learning, concentrating. This is a non-inclusive list. There are many more things
that are considered major life activities. And again, under the Americans
with Disabilities Act Amendments Act, we now include
major bodily functions. And that includes functions
of the immune system, normal cell growth,
digestive/bowel/bladder systems, neurological systems,
the respiratory systems, circulatory systems,
endocrine systems, and reproductive systems. So what kind of disability
would involve the inability to have normal cell growth? Well, that would be cancer. Prior to the Americans with
Disabilities Act Amendments Act, an individual who was dealing
with cancer or limited due to the condition of cancer would
not have been an individual with a disability and would not have
been entitled to reasonable accommodations because they
wouldn’t have been able to show how they were
substantially limited in a major life activity. So as a result of
the Amendments Act, more conditions are now
considered disabilities and the coverage is broader now
than it ever has been. Another term that we need to
understand is who is a qualified individual with a disability. Both the Americans with
Disabilities Act and the Rehabilitation Act
provide protection against discrimination, but only to
those people who are otherwise qualified applicants or
employees with disabilities. And this means that that
individual can perform the essential functions of the job,
as determined by the employer, with or without a
reasonable accommodation. I’d like to highlight that
that’s an “or,” not an “and.” So it’s with an accommodation
or without an accommodation if you don’t need one. It also means that the
individual is able to maintain the same performance and conduct
standards as other employees. Again, the individual has to be
able to perform the essential functions of the position. How do we determine
what an essential function of the job is? There are several things
that you can look at. First of all, the purpose and
the result of the function versus the method of
performing the job. Two individuals with the same
job may not perform the job in the same way, but the purpose
– the result of that job task is really what is
going to be looked at. Whether I come into my office
and work nine to five sitting at a desk in front of a computer,
or whether I do that from home – the method may change,
and that would be the reasonable accommodation. But the result and the
purpose of the position would stay the same. You also want to look at whether
or not the individual actually was required to perform that
job task as part of their job. Many of us have job descriptions
that include job tasks that we have never performed
as part of our positions. You want to look at the
consequences of removing that function from the job. You may not perform the
function very often, but the one time that you
don’t perform that function, what would be the consequence? I think a good way to highlight
this is the job functions of an airline pilot. Their job – 90% of their
job revolves around flying the plane. Only a very small portion
of that job is actually related to landing the plane. But landing the plane is a
very important part of the job, and the consequences of not
doing that part of the job would be catastrophic. You also can look at the
percentage of the time that job function is being performed. Again, the pilot doesn’t spend
a lot of time landing a plane, but it’s an important
function of that job. One way to determine what is an
essential function of your job is to take a look at
your job description, assuming that they are
up-to-date and reflect the current functions
of that position. You also can look at specialized
skills that may be needed to perform the job function. If the individual has to have
specific certifications or licenses, that would be
an essential function of the positon as well. Reasonable accommodation is
defined as any change in the work environment or in the way
things are customarily done that would enable an individual with
a disability to enjoy equal employment opportunities. Some examples of reasonable
accommodation would be a change in shift, providing
readers/interpreters, modifying equipment, providing
flexible times when an individual may take a break,
adjusting job functions for job assignments, or even
reassignment to a vacant position if the individual’s not
able to perform the essential functions of their
current position with reasonable accommodation. So what is not a
reasonable accommodation? Well, removing a central
function of a job is not a reasonable accommodation. Also, creating a new job is
not a reasonable accommodation. Reassigning other
employees would not be a reasonable accommodation. Changing productivity standards
or conduct standards or removing a supervisor is also not a
reasonable accommodation. And employers are not required
to provide personal use items, such as eyeglasses
or hearing aids, as a reasonable accommodation. So, some examples of reasonable
accommodation include making your existing facilities
accessible, job restructuring. Job restructuring is something
that we talked a lot about when the Americans with
Disabilities Act was passed. We don’t discuss this as much
as reasonable accommodations so much anymore. But I think we have a lot more
workplace flexibilities now than we did in the ’90s
when the ADA was enacted. So, job restructuring means
eliminating parts of the job that are not essential so
that the individual is only performing those
essential functions, or transferring nonessential
functions of the job to another employee so that the individual
with the disability then would take on some other duties
that they are able to perform. One good example of this would
be a position that requires the individual to make
copies, multiple copies. If the individual’s job is to be
an editor or to create training material, using a copier
may not be an essential function of the job. If you’re an individual
with a disability, you may have difficulty
using a copier. So that part of that job could
be restructured so that another individual would be responsible
for actually making the copies of the training materials, while
the individual with a disability would focus on the
creation and the editing of those training materials. Other types of
accommodation include: modified schedules, acquiring
or modifying equipment. Most often, I think employers
think reasonable accommodations are very expensive because
they require expensive or very technical types of equipment. And this is often just
not the case at all. Reasonable accommodation also
includes modifying test exams and training materials or
policies related to testing. This doesn’t mean eliminating
the requirement for testing. It just means modifying
the way the test is given. For an individual with a
learning disability who may have difficulty taking a timed
test that requires reading, providing the test orally can
be a modification to the testing exam, or providing additional
time for the person to complete the test could be a
reasonable accommodation. Of course, providing qualified
readers and interpreters would be a reasonable accommodation. And then ultimately, if the
individual is unable to be accommodated in the position
they’re currently in, then reassignment to another
position is a reasonable accommodation that
needs to be considered, and it’s often called the
“accommodation of last resort.” At that point, you would look at
your policies for reassigning an individual to a vacant position. So let’s do scenario two,
and I think Michael’s going to do this for us. MR. LOONEY: Thank you, Kendra. So, looking at scenario two,
we’re going to just talk a little bit and kind of really
look at what it is we would need to do for an individual
with a disability. So, Bob, an employee
with a visual disability, can no longer drive. As a result, Bob seeks a
reasonable accommodation at work. He explains to
his supervisor, Linda, that he can no longer drive to
work and informs her that the facility cannot be accessed
by public transportation. Linda explains to Bob
that because his job cannot be done from home,
telework is not an option. What options do you
think are available? Can the agency also
consider termination? So I’ll give you a second to
think about those two questions. Okay. So, looking
at this scenario, what options are available? You know, is it really true
that telework cannot be done for this position? Maybe looking at having Bob –
providing Bob with a personal assistant service that can
drive him from the local public transportation stop, whether
it’s a metro stop or a bus stop. Maybe that could be an option. The agency could work to provide
someone to be able to do that. Maybe Bob isn’t able to
telework five days a week, but maybe he can telework one
or two days a week to provide that as an option to really
see what can be done. Now looking at: Can the
agency consider termination? Not necessarily
in this situation. Ultimately, they have to
exhaust all other reasonable accommodation options,
including reassignment. So maybe we need to look at do
we want to provide – does the agency provide a reassignment
to another position for Bob to allow him to be able
to telework from home. Now just some things to keep
in mind when thinking about reasonable accommodation. Low tech/no tech options can be
just as effective as technology or other options that
may be expensive. You know, a lot of times,
individuals may be requesting a full, new computer
hardware setup, when maybe all they need to do
is download a specific program or an app to a mobile device or
a tablet that would allow them to be able to do their job. Also, it’s not required to
provide the exact accommodation that the individual with a
disability has requested. Ultimately, you have
to provide the most effective accommodation. Also, the accommodation that
removes the barrier from allowing the individual to
perform the essential functions. So, just because an employee
requests something doesn’t necessarily mean that’s what
the agency has to provide. Also, keep in mind that there
are a lot of resources out there that you can take advantage of
to allow you to determine what is the best accommodation to
be provided for the employee with a disability. You have resources like the
Job Accommodation Network, JAN. They provide a plethora of
information about different types of accommodations
that may be able to be provided to an individual
with a disability. They don’t have the ability to
be able to provide resources in terms of physical –
physical resources, like technology or
buying equipment. But they can give you advice and
guidance to help you make the most informed decision. You also have resources
like the Computer Electronic Accommodation Program, which
provides assistive technology free of charge to
federal employees, including State
Department employees. They do have the ability to do
a needs assessment to determine what types of electronic or
assistive technology would be needed for the individual, and
then they can go from there to working with the individual
to procure it for the agency, and then also, work with the
agency to make sure that it is installed properly and
implemented appropriately. You also have the State
Department’s Assistive Technology Resource Centers,
that are located all across the country and across the world. And they can provide resources
as well in assistive technology. So, just keep in mind that just
because you think something is going to be expensive
that – you know, you still may have to provide
it if it is expensive, but there are other options out
there that allow the individual to be able to perform the
job through the reasonable accommodation process. So now, let’s look
at another scenario. After a surgical
procedure left Valerie, a service representative, with
a vocal cord dysfunction that prohibited her from talking
more than 15 minutes per day, she asked her manager
to only assign her written correspondence. So first and foremost, is this a reasonable
accommodation request? Yes, it is. It is a reasonable
accommodation request. Now, would the requested
accommodation be reasonable and/or effective? Now, ultimately
with this scenario, we would have to really look
more at what are the functions of her job as a
service representative? You know, most customer
service representatives, they probably are dealing
a lot with telephone work, where they are corresponding
over the telephone. But there may be some customer
service representatives where maybe they’re only answering
email correspondence or mail correspondence. So if that’s the case, maybe we
would look at providing her with a position that allows her to
only do those type of functions. And she would only answer calls
for a small portion of the day. So, ultimately, what
should the agency do? They really need to
look at her position, look at the essential functions
of her position and determine: Is talking for more
than 15 minutes per day really essential to her job? And once they’ve
determined that, then they can figure out what is
the most effective accommodation that can be provided. So what is undue hardship? As I said earlier, for
reasonable accommodations, federal agencies are required
to provide reasonable accommodations, unless doing so
would cause an undue hardship. So, there may be specific
accommodations that would require significant difficulty
or expense to the agency. And that ultimately is
what undue hardship is. Now, when looking at undue
hardship, for most agencies, they have a specific process in
determining whether or not undue hardship is present and
they’re not able to provide the reasonable accommodation
because of it. Some considerations that you
should include is the overall size of the agency, the type
of the operation of the agency. What is the essential, the
core mission of the agency? And how would the reasonable
accommodation impact that? The nature and cost
of the accommodation. Now I will say the
majority of the time, cost is not a very good
reason for denying reasonable accommodations. And the reason why that is is
because if at any point an EEO complaint is filed and it goes
through the court process, ultimately the court is
going to look at the budget of the department that
the agency is in. So they would ultimately look
at the budget of the State Department, which I’m
assuming is a very large budget in the billions of dollars. So to say that you can’t provide
an accommodation that is $1,000, $5,000 is going
to be very difficult, considering the budget
of the State Department. Overall financial
resources: Yes, I understand in these times and within
federal agencies there’s different types of resources
or financial structures. But ultimately, it would be
the office’s responsibility to provide – to pay for the
reasonable accommodation, and if the office is
not able to pay for it, then it would move up, whether
it’s a regional location and then overall the
State Department. But there are also other
resources out there – as I said earlier, with the Computer
Electronic Accommodation Program – that may be able to provide
certain resources that would alleviate any expense
for the accommodation. You also need to look at the
impact of the accommodation on the operation of the facility. And if that would severely
impact the operation of how the traditional work
happens at that facility, then you may be able to say
that it is going to be an undue hardship for the agency. But you want to make sure that
you’re making that determination based on the overall
resources of the agency and workplace operations. And I would probably say an
agency is not going to be successful to assert
that cost is a defense. Again, most times agencies
try to use the cost of an accommodation and say that
it’s an undue hardship. But more than likely,
you’re not going to be successful in doing that. So I would say that you really
need to determine how it is that you’re going to pay
for the accommodation, instead of saying that
you’re not going to be able to pay for it. Now let’s look at
another scenario. So here we have Anne. Anne is a qualified
individual who is deaf. She applies for a policy
advisor position with the Navy. The position involves
participating in many meetings and making presentations,
both in and out of town. Anne would use a sign
language interpreter on a regular basis in the position. So, first question we have is:
Would providing a full-time interpreter constitute
an undue hardship? And what about during
business travel? Would an interpreter be required
while on business travel? So I’ll let you think
about that for a second. So, for this scenario, the first
question: Would providing a full-time interpreter
constitute an undue hardship? I would say no, mainly because
there are a lot of individuals that have full-time interpreters
for them when they’re working. But her position would require
her to attend meetings, both in and out of town. So it seems like she’s going
to do a lot of traveling. So more than likely she’s going
to need an interpreter for the majority of these meetings. So there is definitely
a need for it. And providing a full-time
interpreter can be provided through a special hiring
authority where you can hire someone specifically
to do interpretation for this individual. So, more than likely, it’s
not going to be considered an undue hardship. And then also, while on
business travel – yes. Section 501 of the
Rehabilitation Act does require that we provide these type of
services for individuals with disabilities, even while
they’re on business travel. Next, I’m going to turn
it over to Kendra to talk a little bit more about
the interactive process. MS. SHOCK: So, the interactive
process is basically just a communication between the
individual with a disability and their manager and supervisor. This is the time when the
manager is going to ask relevant questions that enable the
individual to make a decision regarding what
reasonable accommodations are going to be necessary
in this specific situation. Many managers and supervisors
are afraid to ask questions when an individual requests
reasonable accommodation. And this is really your
opportunity to do that, to ask questions regarding what
is the individual’s disability, what accommodation
they’re looking for, and why they need
that accommodation. So the interactive process
begins with a reasonable accommodation request. And at that point, you
want to begin a dialogue to talk about specific things. It’s important to acknowledge
that the individual has requested a reasonable
accommodation and identify the specific requirements. What type of software is
this person looking for? Is there a device or a
modification of policy that they’re requesting? You need to identify how
this accommodation will enable the individual to perform the essential functions of the position. This is a good time to consult
with your agency resources, whether it’s your accommodation
resource person or your EEO person, and then determine
whether or not the individual actually has a disability. This is where you want to
request medical documentation. But remember, you can only
request medical documentation when the need for the
accommodation is not obvious. So if an individual has an
obvious disability and their need for that accommodation
is readily apparent, you would not be able to
request medical documentation. But I think in 90% of the cases,
the need for the accommodation is not obvious and it’s
okay to ask for specific medical documentation. Keep in mind that that medical
documentation needs to be directed towards the
individual’s need for reasonable accommodation and shouldn’t
ask any other information that’s not relevant to the
accommodation request. At this point then you
want to explore your accommodation options. Keep in mind the individual with
a disability is probably the best source of information on
what would be the most effective reasonable accommodation. We’ve also talked
about other resources, such as the Job Accommodation
Network and the Computer Electronic
Accommodation Program, who can provide you with
additional information on the types of accommodations that
this individual may be needing. So the final step is to actually
implement the accommodation. Keep in mind that the
interactive process can take a series of weeks from the time
the reasonable accommodation is requested until
the accommodation is actually implemented. Scenario number five:
Beth has renal failure. She has exhausted all of her
accrued leave and only has four weeks left of her FMLA leave. Beth is requesting an additional
10 weeks of leave to recuperate from kidney transplant surgery. So, how would you start
the interactive process? What considerations can
be taken into account? And does the agency have to provide the additional leave? So the interactive process
begins with her request for additional time off. Something that you would want
to consider is: Do you need to request medical documentation
to document her need for this additional leave? What other considerations
need to be taken into account? Is this an undue hardship? If Beth is the only person
available to do the position, what happens if that job
function is not being done for the next 10 weeks? Does your agency have the
requirement to provide additional leave? Keep in mind that providing
leave can be a reasonable accommodation, and that leave
can be added on top of leave that the individual is
entitled to under FMLA. In most situations,
providing additional leave would be considered a
reasonable accommodation, unless the agency can show
that it’s an undue hardship. I think you also need to keep
in mind the situation the individual is dealing with. This individual is having
life-threatening surgery. Whether we grant
the leave or not, the individual still has the
medical need for the time off. I think most managers agree that
they’re willing to work with individuals to take care
of their medical needs as well as perform their jobs. This may be a situation where
providing temporary telework would also be a reasonable
accommodation to enable Beth to recuperate from her surgery, as
well as perform some of the functions of her job from home. And finally, let’s talk a
little bit about managing individuals with disabilities. If you’re a manager of an
individual with a disability, it’s important for you to know
and understand your agency’s reasonable accommodation
procedures and utilize your disability program managers or
your reasonable accommodation office as a resource. Those individuals are there
to assist you through the interactive process. It’s also important to involve
the individual with a disability throughout the process of
reasonable accommodation. You really can’t accommodate
somebody if they’re not involved in that process. It’s important to
maintain confidentiality. Do not discuss the employee’s
medical documentation or condition with individuals who
are not on a need-to-know basis. Also, it’s important not to
keep medical documentation in an individual’s personnel file. All medical documentation
needs to be kept separate in a separate
accommodation file. You want to document
the disability, the request for
reasonable accommodation, what accommodations
were granted, including detailed
terms of agreement. If you’ve agreed to temporary
work from home or telework, you want to document that this
is a temporary agreement and indicate when the telework
agreement will begin and when it will end. You want to also keep open the
lines of communication with the individual with a disability
to be able to address any ongoing needs. And finally, it’s important not
to address information related to the individual’s reasonable
accommodation in their performance evaluation. This is also a violation
of the Rehabilitation Act. And do not ask employees for
medical documentation that’s not related to their request for
reasonable accommodation. Scenario number six: Ron is
interviewing a candidate who has an outstanding application
and credentials. But the woman is limping
slightly and has not mentioned that she has a disability. Ron’s a little concerned because the job requires walking between various buildings
for this position. So he considers asking her
questions about his concerns. So how should Ron
approach this subject, and what questions do
you think Ron can ask during the interview? This is a very tricky situation. You have to balance your need
to know whether or not the individual can perform the
essential functions with concerns over whether or not
you’re asking questions that are unrelated to the interview. I can tell you that
during an interview, when the individual’s
disability is obvious, you can ask how that individual
would perform the essential functions of that position. So Ron could say something
to the effect of, “This job requires
a lot of walking. We work on a large compound. You may have to move from
one office to another. Would you have
difficulty doing that?” That would be an appropriate
question during an interview because it points to the
individual’s obvious disability and a need to perform the
essential functions of the job. It also gives the individual
the opportunity to discuss what reasonable accommodations
that they may need. And finally, keep in mind that
reasonable accommodation is an ongoing process, rather than
a one-time obligated event. Individuals with disabilities
may need accommodations throughout the
employment lifecycle, from application to retirement,
and an individual with a disability can request a
reasonable accommodation at any time and as
often as they need it. Something that you want to keep
in mind when you’ve provided or agreed to a reasonable
accommodation is periodically check to make sure this
accommodation is still working. Is the individual enabled
to perform those essential functions of the job? Does this accommodation
need to be tweaked? If the individual’s been
teleworking two days a week and they may need to extend the
number of days that they’re working from home. Or if you’ve
implemented software, maybe the software needs
to be updated so that it’s more efficient with
your computer system. Does this individual
need training? Oftentimes, reasonable
accommodation does involve new technology. And if you’re like me, it
takes me a while to learn how to use new technology. So an individual may need
training on how to use – effectively use the technology
so that it is actually an effective reasonable
accommodation. Also, you want to keep in mind
whether or not the disability or the work environment
has changed over time. Individuals’ disabilities
often do change over time, depending on their
condition, and also work environments change. The job duties may have changed,
or the environment that they’re working in may have changed. All of these things can affect
whether or not the accommodation continues to be reasonable and
effective for that individual. That concludes our
training today. If you have additional
questions, you can contact the Office of Accessibility
and Accommodations. MR. LOONEY: Or the
Office of Civil Rights. Thank you for participating
in the training. We hope you enjoyed it. GLENN BUDD: Hi.
My name is Glenn Budd. I’m the chief of the Intake and
Resolution Section in the Department’s
Office of Civil Rights. I’ve been asked to come and
speak with you this morning about retaliation,
and more specifically, per se reprisal violations. I’d also like to thank
my esteemed colleagues, Ms. Kendra Duckworth
and Mr. Michael Looney, for participating in
this training session. As we talk about retaliation,
I think it’s necessary that I mention that currently
retaliation comprises 40% of all EEO complaints that are raised
at the Department of State. And it is the dog that gets
off the porch most frequently and bites you the hardest. And what I mean by that is
when we have findings of discrimination made against
the Department of State, it is almost always reprisal,
and that is the case across the federal government. Number two at the Department
of State are findings of discrimination based upon denial
of reasonable accommodation. So, in other words, when
the Department loses, it is almost always these
two bases of discrimination. I need to tell you
what retaliation is. Retaliation is negative
treatment or making decisions against an employee who engaged
in any protected EEO activity. That would include speaking
with an EEO counselor, participating in a
harassment investigation, or filing an EEO complaint. It could be also that
you served as a witness in somebody else’s
EEO complaint. Or you may even have been a
responding management official in an EEO complaint
for someone else. But again, doing that is
completely inappropriate and actions are taken against
managers and supervisors who participate in retaliation
against employees. So let’s talk a little bit about
an unlawful chilling effect. That’s something that’s
pretty easy to run afoul of. As supervisors and managers,
all supervisors and managers or people in a position of
authority are prohibited from doing anything that would have
a chilling effect on whether or not somebody would feel likely
or unlikely to participate in that protected EEO activity
that we just discussed. It could be as simple as, say,
you work for me and you went to see an EEO counselor and I
called you into my office and said, “Look, I don’t
appreciate that you went to see an EEO counselor. You should have come
and spoken to me first.” That is enough to consist of
per se reprisal violation. Sometimes, we see stronger acts
of per se reprisal violations. I’ll give you an example
that we saw here at the Department
of State this year that resulted in
a finding of discrimination. We had a management official
that shared the affidavit that had been provided by an
EEO investigator with other colleagues, other supervisors,
and other employees where she was responding to an
official EEO investigation. That’s actually illegal. It led to a fining of
discrimination against the Department of State. And as supervisors and
managers, it is something that we would want to avoid. The same supervisor took some
further steps and mentioned her displeasure about a particular
individual filing an EEO complaint that would very
clearly have a chilling effect on whether or not somebody
would participate in protected EEO activity.
You just can’t do it. And every time that comes to
light and it makes its way before an EEOC
administrative judge, that judge will make that
finding of discrimination against the Department of State
for a per se reprisal violation or taking actions that would
have a chilling effect on whether or not somebody would
participate in that protected EEO activity that
we’ve been discussing. One example that I can mention
is at a previous agency that I worked at, we had a situation
where a supervisor – and it was a law
enforcement type agency – a supervisor, before their
regularly-held morning roll call, would say
words to the effect of, “So-and-so is in the room today. We know that this gentleman
is very sensitive. We wouldn’t want to do anything
that would hurt his feelings. We know how sensitive he is. We – we wouldn’t want him to
feel the necessity to run back down to the equal opportunity
office again and cry to the equal opportunity officer.” So those are the type of things
that we would want to avoid. And as an aside, this same
individual – and I worked on this case – this same
individual, on a particular day, came in and removed a round from
his service weapon and laid it on the individual’s desk and
used words to the effect of, “You should take this round and
do yourself, your colleagues, and certainly me, a favor
and use it to off yourself.” And that individual put
himself right in the line of fire himself. He took actions that led to
his removal from his position. And it’s completely avoidable. My former boss,
Director John Robinson, the former EEO director here
at the Department of State, would refer to reprisal, and
specifically per se reprisal, as a self-inflicted wound. He would say that it was akin to
putting the bullets in the gun that would be used against you.
And it’s completely avoidable. If you’re a supervisor
and a manager and you’re hearing my voice as part
of this presentation, I am the only Budd
in the locator. Please pick up the phone and
call me and I will talk you back from the edge of the abyss
before you step into it. It is avoidable. It is illegal to
take acts like this. And you should rethink before
you commit anything that would look like a per
se reprisal violation. There are a number of examples
other than the ones that I used. It could be that a person
provides false information to an EEO counselor. The29 Code of Federal
Regulations
dictates that all managers and supervisors at
agencies have to cooperate with EEO counselors
and investigators. We can be sanctioned just for
not cooperating with an EEO counselor or an investigator. It’s not a choice. It’s
actually an obligation. And it’s your job, if you’re
a manager and a supervisor, to make sure that you articulate
for the Department your legitimate non-discriminatory
reasons for any actions that you’ve taken. So you, again, do have to
cooperate with EEO counselors, EEO officers, and
EEO investigators. And that obligation
would follow you, even after you leave
the Department of State. They can compel you to come back
and cooperate with counselors and investigators, if you are
still working for the federal government in some
capacity, at any time. Even if the employee no longer
works for the Department, we can still compel
that testimony. So if you have
questions on that, I want you to feel free to
call me about that as well. Another example could be that
a supervisor makes a joke that says an employee manages to
spend half of their work time working on their EEO complaint,
and they talk about it openly in a forum or a staff meeting. And by the way, this is a real
example that has happened here at the Department of State. That would clearly have a
chilling effect on whether or not somebody would participate
in protected EEO activity if they knew that they were going
to be the object of jokes or fun at a staff meeting
or some other public forum. This also happened. It would be inappropriate for a
supervisor to share with others a person’s EEO activity. That sometimes happens on golf
courses and fishing holes, at bars after hours. We are, again, prohibited
from sharing a person’s protected EEO activity. If you have questions, please
call me, call the case manager, talk to the EEO counselor. Talk to somebody that can
help you with regard to your obligations to avoid reprisal
and per se reprisal violations. Sometimes managers are under the
misimpression that they cannot hold people accountable for
their performance and conduct. That is not true. You can still continue to hold
people accountable for their performance and conduct, but you
cannot do that as a knee-jerk reaction for somebody
filing an EEO complaint. If you’re a manager
and a supervisor, I recommend when you come
on board as a manager and a supervisor that you set
very clear expectations, you set strong, measurable
work commitments, and you hold people
accountable across the board, without regard to their
protected EEO activity. Don’t wait until 15 or 20
minutes after they’ve filed an EEO complaint to hold somebody
accountable for the performance and conduct, because it, again,
is going to look very much like an act of reprisal. I have been doing this
a long time – 22 years, I think – and in
one particular case, I saw that a supervisor put in a
person’s EER that they operated well enough within the
constraints of their multiple EEO complaints. You never want to refer to
that activity in anybody’s EER. That’s not in keeping
with good HR standards. It should be
strenuously avoided. Again, talk to your HRO. Talk to whoever
your HR official is. Pick up the phone and call me. And I’m happy to help you with
anything that’s related in the EEO field and your obligations
as a supervisor and a manager, or if you have questions for me
as an equal opportunity officer here at the Department of State. If you have, again, questions,
you can reach out directly to S/OCR, the State Department’s
Office of Civil Rights, and we are available
on our website, and the main line to our
office is 202-647-9295. Thank you again for
your time today.

Paul Whisler

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