The U.S. Department of Justice discriminated against an individual with a disability in its hiring process, in violation of the Rehabilitation Act of 1973, the U.S. Equal Employment Opportunity Commission has found.
EEOC determined that DOJ ran afoul of the law, which prohibits disability discrimination by entities receiving federal funds, when it rescinded a conditional offer of employment to an individual who was almost blind in one eye. At least one commissioner, however, says the ruling sets a “disturbing” precedent.
Facts of the Case
Jeremy Nathan applied to work as an FBI special agent. He received a job offer conditioned on him successfully passing a polygraph exam, a medical exam and a background check.
During the medical exam, the agency discovered that he had little vision in his right eye. The agency’s chief medical officer said he was “unacceptable for safe and efficient job performance” and the job offer was rescinded.
Nathan filed a complaint with EEOC and an administrative judge ruled in his favor, finding that DOJ failed to perform an individualized assessment of his abilities, as the law requires. The department also failed to show that he would pose a direct threat in the workplace. The judge ordered DOJ to reinstate Nathan’s employment offer, provide him back pay (pending a successful background check) and ensure that he would not suffer retaliation for filing the complaint if he was hired.
DOJ appealed, arguing that Nathan was not qualified for the job and that the department did, in fact, establish that would pose a direct threat to safety. Nathan was not qualified because he failed the vision test, DOJ said. And the department said it knew he would pose a direct threat to safety because it had previously conducted a study on whether individuals with monocular vision could work as special agents.
But DOJ never performed an individualized assessment of Nathan’s abilities, EEOC said. The department disqualified Nathan based on the presumption that no individual with monocular vision can carry out the duties of a special agent. “The evaluation of an applicant’s unique abilities and disabilities is the crux of an individualized assessment,” EEOC continued. An appropriate assessment would have evaluated Nathan’s prior experience and provided him an opportunity to demonstrate how he could safely perform the essential functions of the job because of compensatory skills that he has developed, the commission said.
While DOJ had a legitimate concern regarding Nathan’s ability to safely perform the job, it did not conduct the individualized assessment the Rehabilitation Act requires to invoke the “direct threat” defense, the commission concluded (Nathan v. Holder, EEOC Appeal No. 0720070014 (July 19, 2013)).
One of EEOC’s five commissioners, Constance S. Barker, said in a dissenting opinion that she strongly disagrees with the commission’s finding that DOJ failed to conduct an individualized assessment. The commission also erred in finding that DOJ should have allowed Nathan to demonstrate whether he poses a direct threat, Barker said.
Barker also took issue with the commission’s orders. “I am at a loss as to how the Commission can order the Agency to hire an applicant that the Commission has not even determined is qualified to do the job.” If EEOC believed DOJ’s direct threat defense was inadequate, it should have remanded the case to the administrative judge with instructions on what the FBI was to do to complete a satisfactory direct threat analysis, she said. “Instead, the Commission took the highly questionable position of ignoring whether or not the individual was qualified and focused only on the adequacy of the employer’s affirmative defense.”
Barker added that the decision is “particularly disturbing” because of the implications it has for other law enforcement agencies. It appears to effectively raise the requirement for individualized assessments conducted to establish direct threat, which would apply to not only federal law enforcement, but also state and local law enforcement agencies, she concluded.
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