EEOC finds Alternate Work Space policy did not discriminate against federal employee. Complainant filed an Equal Employment Opportunity (EEO) complaint alleging she was discriminated against on the bases of disability (chemical sensitivity) and reprisal. She alleged the Agency issued an Alternate Work Space (AWS) policy which required each individual working on AWS to be medically evaluated every 2 years in order to remain in the program. Additional complaints concerning the same matter were filed by 4 other complainants, and the Agency issued a single consolidated decision dismissing all the complaints for failure to state a claim. The Complainants appeals were consolidated and sent to the Equal Employment Opportunity Commission (EEOC) for review, and the Commission held that by claiming a violation of the Enforcement Guidance on Disability-Related Inquiries, complainants stated a valid claim. The EEOC remanded the claims to the Agency for further processing, and the Agency then dismissed several of the combined complainant’s complaints for failure to state a claim.

Not long after this, the investigator informed the complainants that their investigations would resume. When the investigator contacted the Complainant in this case, her attorney advised her not to interview with the investigator, nor to respond to the interrogatories sent. Complainant’s attorney advised the investigator that she had met with the investigator at length a year ago and requested the investigator prepare an affidavit for the Complainant to sign, and if after preparing the affidavit the investigator still had unanswered questions, a joint interview with the Complainant and the investigator could be held. Complainant never answered the interrogatories and the Agency ceased processing the complaints. Several months later, Complainant’s attorney requested a final decision on the complaints, and 60 days after that Complainant filed an appeal with the EEOC’s Office of Federal Operations (OFO) stating that more than 60 days had passed since her request for a Final Agency Decision (FAD). In response, the Agency noted that it had not issued a decision on Complainant’s complaint. Following a failed mediation attempt, the Agency issued a FAD finding that there was not sufficient evidence to find discrimination and that the Agency articulated legitimate non-discriminatory explanations for Complainant’s claims.

On appeal, the OFO held that the record did not show that Complainant was receiving AWS as a form of reasonable accommodation for disability, and that the Agency had articulated a legitimate non-discriminatory reason for the policy.  The OFO further held that the Agency’s AWS policy does not meet the definition of a disability-related inquiry because it does not ask whether the employee has a disability, but rather the policy provides an employee an opportunity to be considered for work at a location other than the officially assigned work location based on adverse health effects caused or aggravated by some physical condition associated with their assigned work location. The OFO affirmed the Agency’s FAD finding no discrimination.

Carol Bass v. Environmental Protection Agency, EEOC Appeal No. 01200557711 (April 25, 2007)