EEOC reverses federal agency and finds disability discrimination. Complainant filed an complaint Equal Employment Opportunity (EEO) complaint alleging the Agency refused to hire him as a temporary employee because he was disabled (back injury). Complainant began the process by attending the agency orientations for the position of “casual automation clerk”, including filling out a form disclosing any medical disorders or physical impairments. Following an examination by a physician, Complainant was informed that he was unlikely to be hired, and was denied employment because of his lifting restrictions. The Agency argued that the denial was because an “essential function [of the job] is the ability to lift a tray of letter mail weighing up to 45 pounds on a repetitive basis”, which Complainant could not do. Following the initial investigation of the claim, Complainant did not request a hearing so a Final Agency Decision (FAD) was issued finding that Complainant had not shown he was discriminated against. Complainant appealed to the Equal Employment Opportunity Commission (EEOC).

On appeal, the EEOC’s Office of Federal Operations (OFO) found that a preponderance of the evidence supports a finding of unlawful disability discrimination. The OFO explained that Congress has put in a place a process to isolate an employer’s consideration of an applicant’s medical condition- namely, an employer may not ask disability related questions and may not conduct medical examinations until after it was made a conditional job offer to the applicant. In the instant case, the Agency did not merely ask Complainant if he could perform the functions of the job or ask him to lift the trays that must typically be lifted (both of which would have been appropriate), but instead subjected him to a full physical examination before any conditional job offer was made. The OFO held that such an examination is a per se violation of the Rehabilitation Act and a form of prohibited disability discrimination, and further that this unlawful activity may have resulted in an actual injury to Complainant and that he may be entitled to compensatory damages.

The OFO then looked at whether the Agency can prove that the Complainant would not have been chosen for the position at issue absent the prohibited inquires/physical examination. This analysis hinges on “disability” and “qualified individual with a disability” as defined by the Rehabilitation Act. Although Complainant has a disability, the OFO held that he was not a “qualified individual with a disability” because he was unable to perform at least one of the essential functions of the job he applied for, even with a reasonable accommodation. The OFO therefore held that the Agency engaged in unlawful pre-offer medical examinations and disability discrimination, but Complainant’s non-selection claim could not prevail. The Agency’s FAD was reversed and the case remanded to the Agency for further proceedings.

Dopun v. United States Postal Service, EEO Appeal No. 01992295 (February 13, 2002)