Publications-REASSIGE.98

Ellen Vargas
Legal Counsel
U.S. Equal Employment Opportunity
Commission
Washington, DC 20507

Dear Ms. Vargas:

This letter is in response to the Equal Employment Opportunity Commission’s May 5, 1998 letter proposing the revision of 29 CFR §1614.203, which implemented the 501 regulations of the Rehabilitation Act of 1973, to make it consistent with Title I of the Americans with Disabilities Act (ADA).

While the Council members agree that Congress amended the Rehabilitation Act in 1992 by making the federal and private sectors subject to the same standards prohibiting employment discrimination, we direct your attention to the statement in the May 5, 1998 letter that "Congress made clear, however, that it was not changing federal sector affirmative action requirements involving disability." Consequently, considering that the reassignment requirement was introduced by EEOC to the federal sector process in 1992 as an affirmative action requirement, we feel that it should be left as such. See Federal Register, Vol. 57, No. 70, 12637 (1992). It would be up to Congress, not EEOC, to modify the pertinent statutes.

We also agree with the current restrictions imposed on reassignments in the federal sector by 29 CFR §1614.203(g)--e.g., excluding probationary employees and limiting the jobs to "funded vacant position[s] in the same commuting area and serviced by the same appointing authority."

Following are our reasons for supporting the maintenance of the 1614.203(g) restrictions on reassignments:

• by removing the limitation on reassignments to non-probationary employees, EEOC will take away the current incentive of managers to hire more employees with disabilities as long as the probationary period is available to them. Most of these managers would be unwilling to incur the added expense of reassignment of probationary employees, and, thus, would not hire them.

• by removing the limitation to reassign an individual with disabilities to positions in the same commuting area and serviced by the same appointing authority would require major changes in the funding of bureaus of federal agencies, as well as in the allocation of resources of personnel offices. These changes would have an adverse impact on human resources departments at a time when most have been shrunk in size, and their workloads have increased as a result of massive downsizing. Additional expenses would be incurred by issues related to the payment of relocation expenses for employees with disabilities.

• by adopting these regulations, the long-established personnel regulations pertaining to merit promotions, veterans preference, and programs like the Career Transition Assistance Plan (CTAP) for local surplus and displaced employees would be affected.

• by implementing these regulations, the number of discrimination complaints filed will increase, at a time when EEO offices at federal agencies and at EEOC are battling mounting backlogs with decreased resources--as was pointed in the GAO report no. 98-157BR,"Equal Employment Opportunity: Rising Trends in EEO Complaint Caseloads in the Federal Sector."

• by doing away with the "funded position" restriction, it would necessitate federal agencies to create positions where none exist. This is an unrealistic expectation, given that agencies cannot hire employees unless funds have been appropriated for these positions.

Thanks for offering us the opportunity to comment on the proposed revision of 29 CFR §1614.203. If you have any questions about this letter, you may contact me at (703) 607-1976, or the Vice-Chairs, Jorge Ponce, at (202) 622-0321, and Kathleen Gause, at (202) 226-1060.

Sincerely,
Luther Santiful
President
Council of Federal EEO
And Civil Rights Executives

Email your inquiries to: EEO@FEDCIVILRIGHTS.ORG