Council Meeting
Held
Host: Ms. Bonita V. White
Introduction
Ms. Delia L. Johnson, Co-Chair of the Council and Director, Office of Civil Rights for International Broadcasting Bureau, opened the meeting with a few remarks and then asked the attendees to give their names, agencies, and positions. She thanked Bonita White, Director, EEO Programs, DHHS, for sponsoring this meeting.
Diversity Presentation
Bonita White introduced Jody Wildy, Diversity Outreach Program Manager, Civilian Program Manager, U.S. Department of Health and Human Services.
Ms. Wildy gave a presentation entitled “Not in my Neighborhood.” She stated that diversity and disability are one. She pointed out that the new Americans with Disabilities Act Amendments Act (ADAAA) added credibility to the Americans with Disabilities Act (ADA). Mr. Ponce indicated that there is a need to clarify the meaning of the term diversity. He pointed out that the majority of federal employees use the terms “minorities, women, and persons with targeted disabilities” to refer to affirmative action initiatives – not diversity ones. Thus, they call them “diversity,” when they really mean “affirmative action.”
She indicated that the most difficult barrier that needs to be overcome is
the focus that some managers place on a person’s disability, rather than
on the person’s ability to perform a job. With persons with disabilities numbering
over 50M, or 18% of the
Federal managers have to do a better job of sending vacancy announcements to organizations and affinity groups that service persons with disabilities. A recent article in the Washington Post stated that the Federal Government will hire over 270,000 employees in the next three years in mission-critical vacancies. Ms. Wildy wondered whether government officials will reach out to the disability community about these upcoming job opportunities.
Ms. Wildy indicated that President Obama wants the Federal Government to lead by example. The EEOC’s Lead Initiative has a goal for the Federal Government to attain a 2% representation of persons with targeted disabilities by the year 2010. She stated that 2010 is just around the corner, and she doubts that the federal workforce is close to attaining the 2% goal. For example, she pointed out that persons with targeted disabilities made up 0.92% in FY 2006, and Mr. Ponce indicated that it was 0.95% in FY 2008 – or a 0.03% increase in a 3-year span.
Ms. Wildy insists that applicants with disabilities should be very familiar with the various appointment authorities to facilitate their hiring. In other words, she stated that it is unrealistic to expect the human resources specialists at federal agencies to be familiar with the special appointment authorities, like Schedule A. She said that while the human resources specialists should be aware of the special appointment authorities because it is their job, the reality is that most are not familiar with them.
Milton Belardo, former chair of the Council of Hispanic Employment Program Managers, stated that it is just as important to look at the retention of employees with disabilities as their recruitment. Ms. Wildy pointed out that for every applicant with disabilities who is hired, 2 are separated – for a net loss of -1.
Ms. Wildy stated that one of the biggest myths held by federal managers is that if you hire persons with disabilities, you cannot fire them. Ms. Wildy explained that employees with disabilities who cannot perform the core duties of their job with reasonable accommodations can be fired from their jobs – just like non-disabled employees. The challenge is that some of these managers don’t want to provide reasonable accommodations to their employees with disabilities.
Ms. Wildy indicated that the average accommodation cost, according to the Job Accommodation Network, is less than $600. Delia Johnson pointed out that most federal agencies receive applications from persons with disabilities and automatically send them to their Human Resources departments – where they fall into a black hole. Jorge Ponce stated that there is a need to have a conversation about the less than $600 price tag for the average reasonable accommodation. He explained that some managers get very angry when they hire persons with disabilities based on the less than $600 price tag for the average reasonable accommodation, and find out afterwards that the cost is much, much higher. In these instances, these managers badmouth the hiring of persons with disabilities to other managers. While a possible solution to this challenge is creating a central fund for all reasonable accommodations, there is uncertainty as to whether this is a legal requirement or just a preference. EEOC could play a leading role in clarifying this matter. Nevertheless, Mr. Ponce stated that there is a dire need to engage all stakeholders in this discussion.
To get a better handle on this challenge, Ms. Wildy suggested that federal agencies should establish disability task forces and better utilize the Workforce Recruitment Program (WRP) for College Students with Disabilities. When asked her thoughts of the Federal Disability Workforce Consortium (FDWC), she responded that a lot of its members do not attend the monthly meetings regularly – which makes it difficult to implement its subcommittees’ initiatives and recommendations.
ADAAA Presentation
David Frank, Associate General Counsel, Civilian Personnel Policy, Department of the Air Force, discussed the newly enacted ADAAA. He served as Legal Counsel at the Equal Employment Opportunity Commission under Chair Dominguez from 2001-2003, and as Deputy Director of the Office of Federal Contract Compliance Programs at the U.S. Department of Labor.
Mr. Frank disagreed with the previous presenter’s statement that
persons with disabilities number over 50M, or 18% of the
Mr. Frank explained that the ADAAA became effective on
Mr. Frank described the major provisions of the ADAAA as: 1) changing the
definition of disability, so that
the meaning of “substantially limits” a major life activity no
longer means “severely” or “significantly restricts”
(as the Supreme Court and the EEOC regulations have said); 2) adding a non-exhaustive list of major life
activities that include a list of major bodily functions; 3) clarifying that mitigating measures other than ordinary eyeglasses or
contact lenses shall not be considered in assessing whether an individual has a
disability; 4) recognizing that an impairment that is episodic or in remission
is a disability if it would substantially limit a major life activity when
active; 5) changing the definition of regarded as so that it no longer required
that an employer perceives an individual to be substantially limited in a major
life activity, and instead mandates that an applicant or employee is
"regarded as" disabled if he or she is subject to an action
prohibited by the ADA (e.g., failure to hire or termination) based on an
impairment that is not both transitory and minor; and, 6) providing that
individuals covered only under the "regarded as" prong are not
entitled to reasonable accommodation.
He indicated that based on Supreme Court precedent and EEOC statement, the
ADAAA will not be applied retroactively.
Mr. Frank recommended
that agencies should not spend a lot of time in conducting an anlysis of
whether a complainant is disabled, and, instead, should focus on whether
discrimination took place. He
indicated that the ADAAA proposed regulation has a list of impairments that are
always considered to be disabilities: blindness, intellectual disability (formerly known as mental retardation),
partially or completely missing limbs, mobility impairments requiring use of a
wheelchair, autism, cancer, cerebral palsy, diabetes, epilepsy, HIV/AIDS,
multiple sclerosis, muscular dystrophy, major depression, bipolar disorder,
post-traumatic stress disorder, obsessive-compulsive disorder, and
schizophrenia. In addition, there are some impairments that could go either way
– like back problems – depending on their severity.
Mr. Frank indicated that EEOC erred in not providing a precise definition of “substantially limits.” He said that everyone was expecting EEOC to provide a definition after considering that Congress had not provided one in the ADAAA. Instead, EEOC provided a definition of what “substantially limits” is not. The NPRM says the determination is a “common sense” assessment – “an impairment is a disability … if it ``substantially limits'' the ability of an individual to perform a major life activity as compared to most people in the general population.” Mr. Frank stated that this lack of preciseness in the definition will bring about a lot of litigation – that would have been avoided if EEOC had been more careful in providing a better definition. While the outcome of the litigation would not necessarily result in more findings of discrimination, it will have an adverse impact on agencies’ case backlogs – which could also derail the outstanding record that agencies have accomplished recently in completing their investigations within the statutory 180-day timeframe.
Mr. Ponce asked the reason for the above oversight, given that the disability community has one of its best champions in Acting EEOC Vice-Chair Christine Griffin. Mr. Frank surmised that a compromise had been reached between the political and the disability communities.
Jeanne Goldberg, EEOC Senior Attorney Advisor at the Office of Legal Counsel, disputed Mr. Frank’s characterization of various points in the EEOC’s proposed regulation, and referred attendees to a 2-page summary on the NPRM at http://www.eeoc.gov/ada/adaaa-summary.pdf, as well as a question and answer guide at http://www.eeoc.gov/policy/docs/qanda_adaaa_nprm.html. In addition, she indicated that this issue will be simplified and made easier for employers, rather than be as frustrating to employers as Mr. Frank indicated.
Mr. Frank indicated that the Air
Force is submitting comments to the NPRM, where, among other things, it will
ask EEOC to clarify the meaning of “substantially limits.” A
Council member asked Mr. Frank if he would be kind enough to share the Air Force
comments with the Council before the November 23, 2009 due date, and he agreed
to send an electronic copy to Mr. Ponce.
Another Council member criticized
the NPRM because the “condition,
manner, or duration” of the impairment no longer has any bearing on
determining whether an individual is substantially limited from performing a
major life activity. This will
result in increased litigation as well.
Mr. Frank stated that, under the EEOC’s
proposed regulations, a “regarded as” individual
needs to show only that the employer took a negative action because the
employer regarded the employee as having an impairment. The employee need not
prove the employer regarded the impairment as substantially limiting -- but
the impairment must be more than minor and transitory.
Furthermore, under the NPRM, the employer is deemed to be regarding an employee
as disabled if it acts based on his or her symptoms, not just the impairment
itself – even if the employer is unaware of the underlying impairment.
Mr. Frank speculates that EEOC will rule the majority of times on the side of
the perceived impairment qualifying as a disability. He thinks that federal courts will rule
differently on this issue than EEOC.
Since the way to decide this issue is by doing an investigation, this
will result in an increase in case backlogs and the average time to complete
investigations.
Bashen
Corporation
Janet Emerson Bashen, the President and CEO of Bashen Corporation
("Bashen"), gave an informative presentation about Bashen’s services.
With offices in both Houston and
EEOcaselink is the federal module of Bashen’s patented EEO case management and tracking software solution. Using EEOcaselink, federal agencies gain an automated, web-based system for complaint submission, investigation, complaint management, tracking, trending, and process reporting. EEOcaselink enables federal agencies to manage complaint investigations by centralizing and streamlining the entire investigative process, while facilitating paperless communication and electronic case and document files and capturing all necessary data for agencies to complete Form 462 and the NO FEAR Report.
eeoComply is another piece of the software suite, empowering federal agencies to perform comprehensive diversity assessments and fulfill EEOC reporting requirement, generating the entire MD-715 report electronically through a complete series of dynamic workforce tracking and reporting tools.
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