Although the Americans with Disabilities Act (ADA) doesn’t apply to federal employees, the Rehabilitation Act requires the federal government to reasonably accommodate otherwise qualified disabled workers.
In a recent case involving an employee with a previously unidentified reading disorder—which raised national security concerns because of his involvement with nuclear weapons—the 10th Circuit (which covers Colorado, Kansas, New Mexico, Oklahoma, Utah, and Wyoming) showed just how seriously courts view the Rehabilitation Act’s accommodation requirements.
Unidentified Reading Disorder
On August 20, 2006, “Ronald” started working as an emergency operations specialist for the U.S. Department of Energy’s (DOE) National Nuclear Security Administration, which oversees the transportation of nuclear weapons. His duties included answering 911 calls and relaying GPS locations, mile markers, and directions among nuclear-convoy commanders.
Because Ronald’s duties affected public safety, he had to receive and maintain a human reliability program (HRP) certification. The HRP is a federal program that ensures individuals working with nuclear materials “meet the highest standards of reliability and physical and mental suitability.” Officials at the DOE—as well as trained managers, HRP-certifying officials, and specifically designated psychologists—oversee HRP certifications.
After working for more than 5 months without incident, Ronald’s supervisors became concerned when he mixed up letters and numbers and confused origin and destination cities of mission convoys while reading a daily report out loud. They conducted further investigations and sent him for a medical evaluation with HRP psychologists.
The HRP psychologists concluded that Ronald has mixed receptive-expressive language disorder, which is a communication condition in which the expressive and receptive communicative areas are affected. A psychologist whom Ronald privately hired also concluded that he has a reading disorder. They all agreed that he shouldn’t perform “duties associated with an emergency operations specialist.”
On August 25, 2008, the DOE revoked Ronald’s HRP certification. On September 12, it suspended him indefinitely.
Ronald made several requests for accommodations, specifically asking that he be reassigned to a position that didn’t require HRP certification. He indicated that he was willing to take any job, including janitorial work. Nevertheless, after issuing a final decision decertifying him from the HRP, the DOE fired him on December 6, 2009. At the time of his termination, he was 2 years away from being eligible for federal retirement benefits.
Due Process and Rehabilitation Act Claims
After his termination, Ronald sued the DOE for several things, including violating his constitutional due process rights by revoking his HRP certification and failing to accommodate his disability in violation of the federal Rehabilitation Act. After the trial court dismissed all of his claims, the 10th Circuit provided additional guidance.
Although government employment may be a property right that the U.S. Constitution protects, the 10th Circuit clarified that security clearances—such as HRP certifications—aren’t property rights because they are “merely temporary permission by the Executive [branch of government] for access to national secrets.” Accordingly, the trial court’s dismissal of the constitutional due process claim was correct.
However, according to the 10th Circuit, the trial court shouldn’t have dismissed the failure to accommodate claim under the federal Rehabilitation Act. The Act applies to federal employers and requires them to do more than simply treat nondisabled and disabled employees alike.
Indeed, it requires them to “meet the needs of disabled workers and . . . broaden their employment opportunities.” It also requires federal employers to “provide reasonable accommodations to disabled employees.” If a federal employer doesn’t do so, the employee can sue for failure to accommodate.
Because Ronald’s case involved national security interests, however, he had an extra hurdle to clear. The 10th Circuit recognized that his ability to clearly read and communicate information related to the transportation of nuclear weapons necessarily involved national security interests. It also recognized that when national security is involved, courts usually defer to the executive branch.
Thus, if Ronald’s failure to accommodate claim had stemmed from the DOE’s refusal to allow him to function in a position requiring an HRP certification, the 10th Circuit said it would have upheld the dismissal. But his claim was based on the department’s refusal to accommodate him in a non-HRP job.
Indeed, Ronald’s own psychologist agreed that he shouldn’t hold a position requiring an HRP certification, and he stated he would take any available non-HRP position, even janitorial work. According to the 10th Circuit, because the DOE had failed to engage with him to see if such an accommodation was reasonable, he should have been allowed further opportunity to pursue and develop his claim. Sanchez v. U.S. Dept. of Energy, No. 1:13-cv-00656-KG-LF (10th Cir., 2017).
The first thing to take away from this case is that it isn’t over. The 10th Circuit didn’t state that the DOE had failed to accommodate Ronald. All it did was clarify that the trial court shouldn’t have dismissed the claim, and Ronald should have been permitted to pursue his claim with an eye toward a future trial.
The 10th Circuit’s decision, however, does point to several other lessons. For instance, federal employees may look to the Rehabilitation Act for protections the ADA provides to private employees. Furthermore, although the U.S. Constitution may give special protections to government employees that aren’t available to private employees, there are areas—such as security clearances—where such protections are limited.
Perhaps most important for employers—both public and private—this decision stands as a reminder that, whether under the ADA or the Rehabilitation Act, you have an obligation to engage in meaningful efforts to accommodate otherwise qualified employees whose disabilities you are aware of. If you are concerned about your efforts regarding a specific employee, it would be wise to seek competent legal counsel.