Legal Trends and Rulings
Section 1—U.S. Supreme Court Roundup
Section 2—Lower Court Cases
Section 3—Legislation
Each year, federal workers’ employment rights are significantly affected by the continuing flow
of decisions issued by the federal courts and administrative agencies authorized to resolve federal-sector—and
sometimes private-sector—job disputes. These court and agency decisions often have far more impact
on the average worker’s job rights than do many laws passed by Congress or policy decisions issued
by the White House.
The U.S. Supreme Court decided on three significant private-sector cases in 2002 dealing with employment
issues under the Americans with Disabilities Act (ADA) of 1990. The rulings in these cases could have
affect how similar situations are decided regarding federal employees.
Section 1—U.S. Supreme Court Roundup
Accommodating Workers
A case brought against an airline involved the issue of reasonable workplace accommodation juxtaposed
with the seniority systems—and which one takes precedence when someone with a disability requests
a job that is usually based on seniority. Robert Barnett worked for US Airways as a cargo handler when
he injured his back in 1990. Because of the injury he transferred to a mailroom position that was less
physically demanding. Two years after the transfer his position opened up to be filled on a seniority
basis. Barnett learned that two employees senior to him were applying and requested that the airline
allow him to remain in the position in order to accommodate his disability.
US Airways denied his request and Barnett lost his job. He filed suit claiming the airline had violated
the ADA by discriminating against him and not accommodating his needs. Under the ADA, employers cannot
discriminate against workers who can perform jobs if given “reasonable accommodation.”
The only way employers can be exempt from that requirement is if they can prove that
it would impose undue hardship on the operation. In this case US Airways argued that
altering its seniority system would constitute an undue hardship to the airline and
its non-disabled employees.
A district court ruled in favor of US Airways but Barnett appealed and the U.S. 9th Circuit Court
of Appeals reversed the lower court’s decision, saying each case must be analyzed individually
to determine whether seniority or disability should prevail. Because the courts reached different conclusions,
the U.S. Supreme Court agreed to address the legal significance of a seniority system. The high court
rejected both the US Airways position that any accommodation that infringed on a seniority system was
not reasonable and Barnett’s contention that a seniority system would never justify denying a
disabled person reasonable accommodation.
“A demand for…accommodation could prove unreasonable because of its impact…on fellow
employees—say because it will lead to dismissals, relocations or modification of employee benefits,” said
the high court. An accommodation is usually not reasonable if it conflicts with seniority rules, the
court added. Employers are not required to prove that seniority should take precedence over making
accommodations for disabled employees every time the issue comes up.
The Supreme Court ruled that even though seniority systems generally take precedence, the plaintiff
is free to prove special circumstances to justify accommodation (for example, if the employer frequently
changes the seniority system and already makes so many exceptions that one more would not matter).
(Barnett v. US Airways, Supreme Court, No. 00-1250, 4/29/02)
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Defining Disability
A district court and an appellate court differed on whether Ella Williams had a defined disability.
This case came to the Supreme Court to clarify how a disability in performing manual tasks is determined.
Williams began working for Toyota on an automobile assembly line in 1990 and shortly thereafter developed
carpel tunnel syndrome and tendonitis. Her doctor placed her on work restrictions and she worked on
modified jobs for several years. She wished for more accommodations in her work restrictions and eventually
was placed on a Quality Control Inspections Operation team.
Williams worked in two areas that required virtually no manual work. She had no problems until Toyota
said all members of the inspections teams would be required to perform four specific tasks, one of
which was physical and caused her more pain and physical impairments such as tendon inflammation and
nerve compression. Williams asked if she could perform only the two tasks she had been doing but Toyota
did not change her responsibilities and she missed many days of work.
By her last day of work, she was on no-work-of-any-kind restrictions. The following month she Williams
received a letter stating she was being terminated for poor attendance. She filed suit against Toyota
with the U.S. District Court for the Eastern District of Kentucky, claiming she was disabled and Toyota
had violated the ADA by not giving her reasonable accommodation.
The District Court rejected her claims, saying she did not have a disability as defined by the ADA
because she had no impairment that “substantially limited” any
“major life activity,” such as walking, seeing and hearing. When the
court granted Toyota summary judgment, Williams appealed to U.S. 6th Circuit Court
of Appeals, which reversed the District Court’s decision, finding that Williams
was indeed disabled because her ability to perform manual tasks associated with the
assembly line job was very limited. She could not perform jobs that required gripping
tools or repetitive work with her hands or arms extended at or above shoulder level
for extended periods.
Toyota asked that the Supreme Court determine standards for whether an individual has a manual task
disability. Williams had sought a ruling that if an employee who can do some aspects can still be categorized
as disabled and entitled to accommodation. The high court said that by not examining her limitations
closely enough, according to the ADA’s definition of disability, the appellate court erred in
determining Williams was disabled. It failed to evaluate whether she was incapable of “tasks
that are of central importance to most people’s daily lives,”
such a bathing, brushing teeth and doing chores, which is the standard for disability
under the Act. The appeals court instead focused on tasks associated with her job.
Since repetitive work with her hands and arms extended at shoulder level are not important to most
people’s daily lives, Williams’ inability to do such work did not qualify her as disabled.
The high court found she did not have a disability based on the ADA definition. (Williams v. Toyota,
Supreme Court, No. 00-1089, 1/8/02)
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Potential Hiring Risks
When Chevron declined to hire Mario Echazabal, the Supreme Court agreed to decide whether an Equal
Employment Opportunity Commission (EEOC) regulation is valid justification for this action under the
ADA. Chevron cited the EEOC regulation as a defense, stating that Echazabal’s disability would
pose a threat to his own health on the job. Echazabal argued that the EEOC regulation was not lawful,
thus Chevron’s refusal to hire him because of his disability was illegal.
Echazabal worked for a contractor at one of Chevron’s oil refineries and applied twice for
a job. Both times Chevron made offers with the stipulation that he must pass the company’s physical
fitness examination. The exam revealed liver damage or an abnormality, and the job offers were withdrawn
because Chevron’s doctors said the toxins at the refinery would worsen Echazabal’s liver
condition.
Following the second time that liver problems showed up, Chevron asked the contractor who employed
Echazabal to reassign him where he would not be exposed to harmful chemicals or to remove him from
the refinery. The contractor then fired him. Echazabal filed a suit claiming that Chevron violated
the ADA by refusing to hire him or allow him to continue working based on his disability.
In its defense, Chevron used the EEOC regulation that states that an employer can refuse to hire
someone if hiring him/her would cause a safety or health threat. Chevron found the regulation reasonable
because employers forced to hire people at risk could be subject to litigation under law and loss of
time for sick leave, and could be liable for violating the Occupational Safety and Health Act (OSHA),
which requires that every worker has safe and healthy working conditions.
The District Court granted Chevron summary judgment against Echazabal but on appeal the U.S. 9th
Circuit Court reversed the lower court’s decision saying that the EEOC regulation was not permissible
under the ADA. The law includes some instances in which employers may deny disabled persons advancement,
but only if employers can meet qualification standards that are
“job-related…and…consistent with business necessity.”
The ADA says that employers cannot hire someone who would pose a threat to the health
or safety of co-workers. The EEOC regulation extends this defense by saying employers
can refuse to hire someone person with a disability that would jeopardize his or
her health or safety on the job.
Echazabal argued that the ADA does not mention threats to the disabled person—only to others—and
the EEOC regulation is not lawful under it. The Supreme Court found that the “threat to others” mentioned
in the ADA is only one example of a justifiable reason for not hiring someone with a disability. The
threat-to-self reasoning falls within general “job related” and “business necessity”
standards. The high court reversed the 9th Circuit’s decision, finding the
EEOC regulation is lawful. (Echazabal v. Chevron, Supreme Court, No. 00-1406, 6/10/02)
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Section 2—Lower Court Cases
Special Back Pay Suit
After nearly 20 years, a class-action suit was finally settled in 2002 brought on behalf of all federal
employees who received special pay rates but were denied annual pay adjustments between 1982 and 1988.
The 212,000 affected employees or their heirs will learn during 2003 how to claim the money they are
owed. In November 2002, the U.S. Court of Federal Claims conducted a fairness hearing on the proposed
settlement, whereby the government would pay $173.5 million to those individuals represented in the
class.
The National Treasury Employees Union (NTEU) initiated the suit in 1983 after the Office of Personnel
Management (OPM) instituted a regulation the previous year that denied employees who received special
rates from also getting annual pay adjustments—and therefore denied them increases. In 1987,
the U.S. District Court for the District of Columbia found the regulation illegal and since then NTEU
and OPM had debated the details of awarding the appropriate back pay. (NTEU v. U.S., No. 02-128)
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Promotion Standards
In what could be used as a precedent in Army officer promotion standards, a federal judge declared
the Army’s officer promotion policy unconstitutional, saying it discriminated against white males,
giving preference to women and minorities. The Supreme Court has held that for affirmative action to
be legal, the institution implementing it must prove a clear record of past racial or gender discrimination.
The judge in this case used data to show that black officers have been promoted at virtually the same
rate as whites since the 1970’s, and therefore the Army had no reason to take race into consideration
in the promotion process. The judge struck down the Army’s policy. (Saunders v. White, U.S. District
Ct., D.C., Civil Action No. 99-2807, 3/5/02)
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Reductions In Force
The Federal Service Impasses Panel (FSIP) found that the Defense Commissary Agency was not obliged
to move senior employees in order to save them from losing their jobs during a reduction in force (RIF).
When the union representing the commissary employees learned of upcoming RIFs in three commissaries,
it proposed to move the least senior employees to the location that would suffer the biggest RIF and
the most senior to commissary that would suffer the least. The FSIP found in favor of the Defense Department
agency and agreed that too much time and work would have to go in to shuffling workers between locations
to justify protecting a few senior employees.
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Discrimination In Promotions
NASA’s Goddard Space Flight Center agreed to pay black employees to settle a class- action
suit outside of court. In this case, 120 black scientist and engineers at the Wallops Island Flight
Center in Virginia claimed they were denied promotions to GS-14 and 15 positions from 1991 to 2002.
NASA agreed to pay them $3.75 million, hire an independent firm to revise the promotion system and
monitor statistics to ensure there is no further disparity between black and white scientists and engineers
in those job levels.
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Denial Of Career Advancement
In a similar case, African-American male employees of the Social Security Administration (SSA) filed
a complaint with the Equal Employment Opportunity Commission (EEOC) alleging they, as class of 2,200
people, had been denied career opportunities since 1987. Specifically they claimed they had not been
promoted and had been treated unfairly regarding performance appraisals, awards and bonuses and disciplinary
actions. The SSA settled without going to court and agreed to pay $7.75 million to black male employees
making the claim, but admitted no guilt. The EEOC believes this case could set a precedent for resolving
discrimination cases outside of court. (Burden et al. v. SSA, EEOC Case Nos. 120-99-6378X, 6379X, 6380X)
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Whistleblower Protection
The issues of whistleblower protection came up in several forms last year, especially in light of
the terrorist attacks of Sept. 11, 2001. Federal employees alleged that their agencies could have acted
differently to thwart the attacks.
James P. Hopkins of the Federal Aviation Administration (FAA) alerted the FAA of a possible link
between one of the Sept. 11 hijackers and someone who trained at the FAA Academy. He was subsequently
fired and the Office of Special Counsel (OSC) investigated and reported that the FAA appeared to violate
the Whistleblower Protection Act by terminating him. Hopkins read a news article after the attacks
and learned that two of the hijackers had gone through U.S. flight training. He searched for their
names and nationalities in the FAA International Training Program database and found a match for one
of the hijackers mentioned in the news article.
When his supervisor refused to give him permission to share the information with the FAA, he did
so anyway and later contacted FBI investigators as well. After the investigation into his termination,
the OSC asked the FAA to reinstate Hopkins, which the FAA originally refused to do. Hopkins received
reassignment to a position at the same grade and pay as the one he previously held. He also received
full relief, including back pay, benefits and attorney fees.
In another case, the OSC found the Immigration and Naturalization Service (INS) violated the Whistleblower
Protection Act when it proposed to suspend and demote two Border Patrol agents in Michigan for talking
to the media about security lapses on U.S. borders. Both had reported that only 324 agents served the
entire U.S.-Canadian border, 28 agents were assigned to protect 804 miles of waterway and shoreline,
and the equipment was sparse and in bad condition. Border Patrol officials felt the agents had been
disloyal and suspended them for 90 days and demoted them for one year. However, the OSC ordered the
INS to grant them full back pay and cancel their suspensions and demotions.
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Refusing Anthrax Vaccine
Two civilian employees of the Navy Department were dismissed for refusing to take anthrax vaccine.
They were given the order because the ship on which they worked was bound for Korea, which was considered
a high-risk area. A judge denied their appeal that the vaccine order was unauthorized and the penalty
of being fired was excessive. Both claimed they had medical waivers to excuse them, but the Navy did
not find they were entitled to an exemption. A judge found that because the employees violated a legal
order, the Navy had the right to terminate them. (Mazares and Testman v. Dept. of Navy, U.S. Ct. of
Appeals for Fed. Cir., Nos. 01-3337, 3338, 9/11/02)
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Section 3—Legislation
Homeland Security Bill
With the creation of the new Transportation Security Administration (TSA) in 2002, there was debate
over whistleblower protection for new TSA employees from retaliation if they reported any crime, fraud,
waste, mismanagement or abuse. Originally they had limited protection rights.
Ultimately, TSA employees gained full protection under the Whistleblower Protection Act in the bill
the President signed in November to create the Department of Homeland Security (H.R. 5005).
After a year of input from the administration, agencies, unions and management experts, Sen. George
Voinovich, R-Ohio, authored legislation to reform workforce policies in preparation of agency needs
that will result from the wave of federal employee retirements coming in the near future. He pushed
hiring, training, incentive payment and other personnel management reforms in the new homeland security
act.
Under the new homeland bill, the federal hiring system will be changed from “rule of three” to “category
ranking,” allowing managers to make hiring selections from a larger number of candidates than
a list of three.
New legislation for workforce restructuring: The homeland bill includes a provision that creates
a permanent government-wide authority to offer voluntary separation incentive payments (buyouts) of
up to $25,000 and there is also a government-wide voluntary early retirement authority.
The new bill instructs most agencies to create a Chief Human Capital Officer to align agencies’ personnel
policies with their strategic goals and to set development strategies for the workforce.
Under the new bill the president can exempt employees from collective bargaining rights for national
security reasons. Federal employee unions can appeal new personnel rules, but can not ultimately block
them as the president has the final word.
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No FEAR Act
President Bush signed the Notification and Federal Employee Anti-discrimination and Retaliation Act
(No FEAR) into law in May 2002. The Act’s purpose is to make federal agencies more accountable
for discrimination violations and enforcing whistleblower protection laws. In addition, agencies that
lose discrimination and whistleblower cases are now required to reimburse those payments that go to
employees for claims, final judgments, awards or settlements. Previously, a Justice Department fund
paid those costs instead of the agency itself. Agencies too must provide employees with written notification
of their rights and protections, which is to be posted on agencies’ Web sites along with the
number of EEO complaints filed.
Within 180 days of the end of each fiscal year, agencies must submit reports that include the status
of cases, the amount of money paid, the number of employees disciplined for discrimination, retaliation
or harassment, descriptions of disciplinary policies and any actions planned or taken to improve complaint
or civil rights programs.
Congress anticipates that by notifying employees of their rights in this regard, more agencies will
comply with the law. By requiring annual reports of the numbers of discrimination and whistleblower
cases brought against each agency, Congress expects to improve its oversight of agencies.
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Dismissal For Late Filings
IRS employees can still be fired for late filing of their federal income tax returns. The IRS Restructuring
and Reform Act of 1998 lists offenses for which IRS employees can be dismissed at once (known as the
10 Deadly Sins), including filing their own taxes late, even if they are due a refund. There was pressure
during the year to persuade Congress to alter the law’s list of offenses. In March 2002, the
House Ways and Means Committee moved to bar late filings from the list of offenses for IRS employees.
The National Treasury Employees Union (NTEU) and Bush administration supported the change in law,
contending the change would improve morale at the agency. However, the House failed to pass the Taxpayer
Protection and IRS Accountability Act of 2002, which would have modified the 1998 law and reduced penalties
for several of the offenses, including late filing.
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For More Information
You may obtain more information about legal trends and rulings in the current
edition of the Federal Employees Almanac.
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