Reasonable Accommodations

Requesting Personal Assistance Services

Facilities Accessibility for Personnel with Disabilities

An agency must reasonably accommodate the known physical or mental limitations of an otherwise qualified applicant or employee with a disability, unless it can show the accommodation would impose an undue hardship on its operations. 29 CFR 1630.9. Although federal employees are protected by the Rehabilitation Act of 1973, the standards applied are the same as those applied under the Americans with Disabilities Act of 1990. 29 CFR 1614.203(b).

Because employment law relating to individuals with disabilities can be complicated, it's important for managers to address the issues surrounding reasonable accommodation in a logical manner. This Checklist Plus+ allows you to guide managers through a step-by-step approach when they consider a request for reasonable accommodation.

The speed of the accommodation process depends on the circumstances of the case. A simple and obvious accommodation that requires no equipment, planning or cost should be available to an individual with a disability soon after it is requested. With regard to more complex accommodations, the key is diligence.

If an agency works with good faith and perseverance to achieve reasonable accommodation within a reasonable period of time, it should avoid a finding of liability for disability discrimination. An agency that drags its feet and makes only half-hearted attempts to achieve reasonable accommodation could be found liable for disability discrimination, including an award of compensatory damages, which could be quite high, depending on the complainant's evidence of pain and emotional distress.

You may work through the steps of this Checklist Plus+ in the order presented or use the summary of steps below to link directly to those areas that most interest you.

Summary of Steps

1. Determine if the person is an individual with a disability.
2. Determine if the person is a qualified individual with a disability.
3. Consult with the individual about specific needs and consider accommodation possibilities.
4. Determine if the preferred accommodation is an undue hardship.
5. If it is not an undue hardship, implement the accommodation.
6. Determine whether the accommodation chosen is effective.

1. Determine if the person is an individual with a disability.

An individual with a disability is one who:

• Has a physical or mental impairment that substantially limits one or more of the person's major life activities.
• Has a record of having an impairment that substantially limits one or more of the person's major life activities.
• Or is regarded as having an impairment that substantially limits one or more of the person's major life activities. 29 CFR 1630.2 (g).

"Substantially limits" and "major life activity" are both terms of art that have been defined by regulation and case law. Except in the case of readily apparent disabilities, such as blindness, agencies should not make assumptions about whether or not individuals have disabilities. Instead, if an individual makes a request for reasonable accommodation, and the extent and impact of the claimed impairment are not obvious, an agency should promptly consider the following two questions. If the answer to both is "yes," the agency should move on to the next step in the analysis.

Question 1: Does the individual have an impairment?

An impairment, according to the EEOC, is:

• Any physiological disorder, or condition, cosmetic disfigurement, or anatomical loss affecting one or more of the following body systems: neurological, musculoskeletal, special sense organs, respiratory (including speech organs), cardiovascular, reproductive, digestive, genito-urinary, hemic and lymphatic, skin, and endocrine.
• Any mental or psychological disorder, such as mental retardation, organic brain syndrome, emotional or mental illness, and specific learning disabilities. 29 CFR 1630.2(h).

The appendix to the regulation adds this explanatory guidance:

It is important to distinguish between conditions that are impairments and physical, psychological, environmental, cultural and economic characteristics that are not impairments. The definition of the term "impairment" does not include physical characteristics such as eye color, hair color, left-handedness, or height, weight or muscle tone that are within "normal" range and are not the result of a physiological disorder. The definition, likewise, does not include characteristic predisposition to illness or disease. Other conditions, such as pregnancy, that are not the result of a physiological disorder are also not impairments. Similarly, the definition does not include common personality traits such as poor judgment or a quick temper where these are not symptoms of a mental or psychological disorder. Environmental, cultural, or economic disadvantages such as poverty, lack of education or a prison record are not impairments. Advanced age, in and of itself, is also not an impairment. However, various medical conditions commonly associated with age, such as hearing loss, osteoporosis, or arthritis would constitute impairments within the meaning of this part. 29 CFR App. 1630.2(h).

EEOC regulations state that "temporary, non-chronic impairments of short duration, with little or no long term or permanent impact, are usually not disabilities." 29 CFR App. 1630.2(j) ). However, the EEOC also has indicated that an impairment does not have to be permanent in order to be considered a disability for the purposes of Rehabilitation Act protection. Conditions that are long-term, or of an indefinite duration, can constitute disabilities if they are so severe that they substantially limit a major life activity.

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Complaint Procedures

Army EEO Complaint Process Flow Chart

Policy

It is the policy of the Department of Army (DA) and the Department of Defense (DOD) to provide equal employment opportunity for all of its employees and applicants for employment in every aspect of their employment and working conditions. Important aspects of an effective equal employment opportunity program are a vigorous affirmative action program and a discrimination processing system, which facilitates the early informal resolution of complaints as they’re raised. Below are the steps involved in the administrative Equal Employment Opportunity (EEO) process.

Any DA or DOD employee or applicant may file complaints of discrimination for a DA or DOD job, who believes he or she has been discriminated against on the basis of:

• Race
• Color
• Religion
• National Origin
• Sex (includes sexual harassment)
• Age (40 and up)
• Disability (physical and mental)
• Genetics
• Reprisal

Pre-Complaint Process

The Aggrieved Employee starts the equal employment opportunity (EEO) process by meeting with an EEO official or EEO counselor within 45 calendar days of the alleged incident or personnel action. This starts the first phase, the "Pre-complaint" process. Usually, the initial contact made by an employee to an EEO official/counselor is either to seek general information concerning the EEO complaint process or to actually begin the EEO complaint process.

Once it is determined that the Aggrieved Employee wants to proceed with a matter of concern, the next phase starts, the "Pre-complaint Intake" process. The pre-complaint intake interview will be transcribed by the EEO official/counselor and he/she will determine as to whether or not the employee is alleging discrimination within the protection of 29 CFR 1614 (Title VII), and the proper venue for an individual to use to address his or her concern (s).

Once it has been determined that the matter presented by the employee is appropriate for processing under Title VII, the EEO official/counselor will define and record the date(s) and facts of the specific incident(s) or personnel action(s). The EEO official then explains the activity's Alternative Dispute Resolution (ADR) - Mediation program, including the difference between ADR and traditional counseling and the right to choose participation in ADR or traditional counseling should an offer of ADR be made.

If the aggrieved employee elects traditional counseling, an EEO counselor will be assigned. The counselor will conduct a 30-calendar day inquiry into the allegations raised and to attempt resolution of the complaint. If the complaint is not resolved, the counselor will conduct a final interview and provide employee with management's response to alleged allegation and their reason for not reaching resolution and issue the aggrieved employee the notice of right to file a formal complaint and the final interview within the prescribed timeframe.

If the EEO official determines that the complaint is suitable for ADR (Mediation), then an ADR Mediator is assigned and a mediation conference will be scheduled and conducted at the identified location.

If the dispute is resolved through the use of ADR-Mediation, the ADR Mediator will coordinate the proposed resolution with the EEO officer, designated Army representative, and appropriate civilian official prior to execution. The pre-complaint resolution will be documented in the form of a negotiated settlement agreement (NSA). The aggrieved employee will be provided with a copy of the NSA signed by all parties.

If the dispute is not resolved within the prescribed timeframe, the EEO official will document the record and issue the employee a notice of right to file a formal complaint and final interview.

Formal Complaint Process

An employee should exhaust the pre-complaint stage before filing a formal complaint of discrimination, either by traditional counseling or through the use of ADR (Mediation).

A formal complaint must be filed within 15-calendar days of the date of the Notice of Right to File a Formal Complaint of Discrimination letter. The agency shall acknowledge receipt of a formal complaint in writing immediately upon receipt of the formal complaint. Also, the agency shall notify the employee of the following: It's obligation to investigate the complaint in a timely manner. The investigation must be appropriate, impartial, and completed within 180 days of filing the complaint.

Inform employee of his/her rights and responsibilities. This includes:

1. The right to a hearing, except in mixed cases. An employee has a right to request a hearing before an Equal Employment Opportunity Commission Administrative Judge after 180 calendar days from the filing of a formal complaint or after completion of the investigation, which ever comes first.
2. The right to appeal if the agency dismisses his/her complaint, a final action or a decision. Partial dismissals are not immediately appealable. The appeal must be filed within 30 days of receipt of the dismissal, final action or decision. Appeal may be mailed to the Equal Employment Opportunity Commission, Office of Federal Operations, P.O. Box 19848, Washington, DC 20036.
3. The right to file a civil action in a federal district court on claims raised in the administrative process (pre-complaint stage):
   1. Within 90-calendar days of receipt of a final action on an individual or class complaint if no appeal has been filed;
   2. After 180-calendar days from the date of filing an individual or class complaint if an appeal has not been filed and a final action has not been taken;
   3. Within 90-calendar days of receipt of the Commission's final decision on appeal; or
   4. After 180-calendar days from the date of the filing of an appeal with the Commission if there has been no final decision by the Commission.

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