MINUTES FOR THE APRIL 20, 1999 MEETING

Jorge Ponce (EEO Manager, U.S. Department of the Treasury) sponsored the meeting, which was held at the Treasury headquarters building.

Mr. Christopher Kuczynski (Assistant Legal Counsel, Americans with Disabilities Act Division, Office of Legal Counsel, EEOC) provided highlights of EEOC's recently published guidance on this topic.

Mr. Kuczynski first stressed that the new guidance does not supersede guidance originally provided, but rather amplifies certain areas that have now been more fully defined by court decisions.

Topics addressed included the following:

Requests for reasonable accommodation and employer responsibilities. Documentation: Where a specific accommodation is not obvious. Employers may request reasonable documentation regarding the nature of the disability and the rationale for and type of accommodation. If reasonable documentation is not provided, employers may request further examination by an appropriate professional, such as a health care professional of their own choosing (at employer expense).

Benefits and Privileges

The accommodation shall not be limited to the minimum necessary to accomplish basic workload, but should enable the employee to achieve effective performance. Delays in providing the accommodation will be reviewed under the terms of undue hardship re: both the agency and the employee. Employees must be provided equal access to information provided to other employees, even that which may not be deemed directly related to performing essential job functions. Employees must also be provided equal access to training. If the training is provided through a contractor, issues concerning who will provide accommodations should be spelled out by the agency or the contractor, within the terms of the contract.

Other types of accommodation:

Job restructuring Leave. A determining factor on how much or when falls back on the undue hardship factor. Reassignment. This is the accommodation of last resort. Normally it will be to a position similar in qualifications, responsibilities and pay to the position vacated. Guidelines under the ADA are somewhat broader than those under the Rehabilitation Act, which are found at 29 CFR 1614.203(g).

Mr. Kuczynski commented further on situations that should trigger the reasonable accommodation process on the part of the agency:

The person has a known disability. There is a known performance or conduct problem. The employee is unable to request an accommodation. The new (and complete) ADA guidelines are available electronically through the EEOC website at: www.eeoc.gov/docs/accommodation.html

THE RELATIONSHIP OF THE REHABILITATION ACT AND THE AMERICANS WITH DISABILITIES ACT TO THE FEDERAL SECTOR

Ms. Carol Miaskoff (Assistant Legal Counsel, Coordination Division, Office of Legal Counsel, EEOC) spoke to some of the issues regarding this subject:

Ms. Miaskoff indicated that 29 CFR 1614.203(g), which addresses Federal Sector accommodation issues, is undergoing EEOC review. Ms. Miaskoff explained further that while 1614.203(g) places restrictions on certain accommodation actions, the ADA is more flexible. She went on to give specific examples of potential differences on reassignment actions:

1614.203(g) prohibits accommodation of probationary employees, while the ADA has no such restrictions. The ADA does require the employee to meet job qualifications and that the reassignment will not cause undue hardship. Basic requirements regarding reassignment to a funded, vacant position and that the position be essentially equal to the previous position, will probably not change. Under 1614.203(g), reassignments for accommodation purposes are restricted to the local commuting area. The ADA has no such restrictions. There are no geographic restrictions under the ADA (as long as there is no undue hardship). Anticipated changes to 1614.203(g) will mean that analysis of accommodation issues will require more flexibility. We also need to consider the implications of the Civil Rights Act of 1991 in terms of the potential for compensatory damages, which may be awarded for lack of efforts to accommodate. In response to a question about the conflicts between 1614.203(g) and the ADA guidance, Ms. Miaskoff replied that 1614.203(g) has regulatory status while the ADA is statutory. Statutes take precedence over regulation. Reassignment provisions now in effect in the Federal sector are those with the more generous ADA interpretation rather than the more restrictive provisions found in the Rehabilitation Act. When Jorge Ponce asked why EEOC had asked agencies for their opinions on May 5, 1998, regarding the EEOCƒ­s proposed revision of the 1614.203 reassignment provision, considering that the ADA guidance on reassignment was currently in effect in the Federal sector, the EEOC speakers said they could not answer the question. To read the Council's position paper regarding this matter, members should refer to the Council Web site, Publications Directory, Reassige.98 subdirectory.

Address to the Council by the new EEOC Chair, Ms. Ida Castro. FLRA and complaints. Union involvement in the discrimination complaint process.

Make plans to attend the annual FDR conference, 24-27 August 1999, in San Antonio, TX. Complete conference information on registration, agenda, hotel, etc is available through the FDR conference web site at www.fdr-conference.org. Please note the pre-conference seminar on 23 August 1999, entitled Civil Rights: Inside and Outside. Contemporary issues will be presented in this collaborative effort by DOJ, EEOC, Executive and Legislative Branch representatives from the Council of Federal EEO and Civil Rights Executives, and from private industry. Further details are available on the FDR web site.

Don't forget to include your EEO vacancies on the Council web site. We should also share available internships and developmental assignment opportunities.

Please, Please, Please!!!!! Take a few minutes to complete the membership application form on the web site, even if you are already a member. This will allow us to update our listing of active members.

Respectfully Submitted:

The next Council meeting will be held at on Friday, June 4, from 10:00 am to 12:00 pm in Room 9520 of the Corporation for National Service, which is located at 1201 New York Avenue, NW. The Corporation is accessible by Metro on the Red line (Metro Center; 12th & G Sts. exit) and on the Blue/Orange lines (McPherson Square; White House exit). No clearance is required to enter the building, so you do not have to call anyone in advance. Dr. Jodi Simco and Ms. Kay Adams, consultants with the Hay Group in Arlington, VA., will make a presentation on measuring the effectiveness of diversity and EEO programs. The Hay Group is currently assisting the National Institutes of Healthƒ­s Office of Equal Opportunity to assess the different EEO programs and to develop measurable benchmarks.

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