Disability Discrimination Claims

➤ The Definition of Disability under Americans With Disability Act Amendments Act (ADAAA), which is equivalent to Rehabilitation Act (which is applicable only to federal employees):

• Having an impairment (mental or physical) which substantially interferes with one or more major life activities such as walking, bending, sitting, pulling, pushing, holding (a tool/bag, etc.), stooping, climbing ladder or stairs, running, jogging, breathing, shopping groceries, take care of yourself, dressing, combing, bathing, sleeping, eating, having sex, procreating, learning, reading, concentrating, driving (?), cleaning your house, cooking, gardening, lifting a child, eating at a restaurant, going to theater/church/bar, socializing, remembering recent activities, listening, seeing, talking, communicating, eating, swallowing, growing, digesting (food), bowel movement, bladder functions, sensing (by touch or by feeling via brain activity, etc.), carrying out routine chores at home, and working (at the same or comparable job within commuting distance with or without accommodation--this gets legally complicated; because usually you are supposed to be able to perform the essential functions of the job if, as explained below, you are claiming disability discrimination--so avoid using this example).

➤ Episodic Conditions:

Episodic conditions can be deemed disabling if, when active, it interferes with one or more major life activities.

➤ Perceived ("regarded as") Disability:

If an employer failed to act or acted in adverse way in disparate manner based on non transitory and minor impairment, the applicant or employee is "regarded as" or perceived as disabled--regardless of whether the employer knew such impairment interfered with one or more major life activities.  To claim perceived disability, one must have non transitory and minor impairment in the least--regardless of whether such impairment substantially interferes with one or more major life activities.

An individual claiming discrimination based on perceived disability cannot claim to be accommodated, unless he or she actually has a disability that meets the above definition and requested accommodation based on disability.

➤ Denied accommodation claims and Worker's Comp claims:

Light duty under Workers' comp. (OWCP) provision in general should not be confused with reasonable accommodation under ADA/Rehabilitation Act.  Light duty under OWCP usually involves substantial alternation of the job in such a way that you are no longer performing the essential functions of the job you were hired for or have been performing for more than 6 months or a year.  

But this could get legally complicated. For example, if you were performing a light duty for more than a year, it becomes your main duty.  And, say, due to changes in your medical condition, you needed an accommodation to continue to perform the light duty.  In that case, you are entitled to a reasonable accommodation while on light duty, as long as you meet the definition of disability under ADAAA/Rehabilitation Act, as specified above.  

Otherwise, in general, if you are disabled under ADA/Rehabilitation Act, you are entitled to a reasonable accommodation, if you can perform the essential functions of the job you were hired to perform or have been performing more than 6 months or a year.

If you cannot perform the essential functions of the job, you are not entitled to a reasonable accommodation, although you may be entitle to a suitable light duty (if your OWCP claim is approved and if such light duty work is available).

More on how not to fall into trap when requesting a reasonable accommodation: a LinkedIn article by Chungsoo J. Lee.

➤ Reasonable Accommodation:

Your accommodation requests must be reasonable.  That means, for you they must be suitable to be able to perform the essential functions of the job; and for employer they must not cause "undue hardship."

Undue hardship must be defined on case by case basis--depending on the size of the company, what was requested as accommodation, etc. A claim of undue hardship without showing or plausible explanation should be challenged as a pretext for denial in violation of ADAAA/Rehabilitation Act.

Accommodation must be requested clearly and as specifically as possible.  A vague request, such as lateral transfer, can easily be denied by the employer, saying: there are no such positions.  Present a specific vacant position, if a lateral transfer is what you are requesting as a reasonable accommodation.

Once accommodation is requested, both the employer and the employee have obligation to engage in an "interactive process."  This means, it takes two to tango.  You and the supervisor/HR must actively work out a solution to come up with a reasonable accommodation.  Unilateral demand on the part of the employee or unilateral denial on the part of the employer cannot be deemed to be engaging in an interactive process.  Failure to engage in an interactive process is just as serious a violation as a blatant denial of accommodation.

➤ Disability Discrimination and Disability Retirement:

As long as you can perform the essential functions of the job (with or without accommodation), you can claim disability discrimination, if you meet the definition of disability.  But, often times, your disability is made worse by employer's discriminatory or retaliatory actions (which are often persistent and on-going, so as to create an intolerable working condition), as result of which you could no longer perform the essential functions of the job or of any job within the same or similar classification and pay grade within commuting distance, in which case you may in turn qualify for Social Security Disability benefits and Disability Retirement.  If you qualify for disability retirement, you may no longer be able to claim (a new) disability discrimination, as you may no longer be able to perform the essential functions of the job.  This does not mean that your past disability discrimination claims would become automatically moot or frivolous.  It means that you cannot make similar claims any more, as you can no longer perform the essential functions of the job due to disabling disability.  Hence, the disability retirement.  There is an exception to this, however. You may still be able to claim a constructive discharge.

➤ Constructive Discharge claim:  

A constructive discharge claim must claim "intolerable working condition" to which the complainant was subjected to in such as way that any reasonable person under similar circumstances would have no choice but to quit, retire, take demotion, etc.  

If as result of discrimination and/or retaliation your working condition became so "intolerable" that any reasonable person under similar circumstances would have no choice but to quit, retire, take demotion, etc.; and, as result, your disability became worse; you may be able to claim a constructive discharge when your retirement, resignation, or demotion becomes effective.  In that case, your logic/legal argument behind your claim is: Had you not been discriminated/retaliated against, your working condition would not have been made intolerable, and your health would not have worsened as result; and had your health not been made worse, you could have been able to perform the essential functions of your job (with or without accommodation)--that is, you would not have had to quite, retire, take demotion, etc.    

This scenario is the logic/legal argument behind your constructive discharge claim involving disability retirement.  Of course, you don't present the logic/argument as facts.  You present the facts first that would support such a logic/legal argument.  You may summarize the material facts with such a logic/argument, however.

➤ Disability Retirement and Workers' Comp:

If your disability was made worse (to the point of inability to work) as result of discrimination/retaliation in the work place, you may qualify for Workers' Comp claim in addition to disability retirement (as the worsening of your condition was job-related).  The two benefits systems (OWCP and Retirement) may complement and supplement each other in terms of compensation.  But, also, the two may mutually exclude each other in terms of compensation. That is, you may have to reimburse if you were overpaid as result of receiving benefits from both systems.  For this reasons, retirement application, SF 3107 Section F (which must be filled out for both regular retirement and disability retirement), asks about your OWCP claim.

Disclaimer: All information contained in this website is subject to change and update.  EEO 21, LLC is not
responsible for any errors or misrepresentation contained therein.

Disclaimer

• Mr. Lee is not an attorney but can represent clients in federal administrative processes, including EEOC hearings and MSPB hearings.
• Mr. Lee does not practice law and cannot provide attorney-client protection privileges.  However, as any union shop steward can, Mr. Lee can represent federal employees at any administrative proceeding including those referenced above.
• Mr. Lee cannot and does not represent clients at court proceedings.