August 26, 2008
Emily Ryan
(202) 639-6421

EEOC Ruling Supports AFGE Claims that TSA Is Bound by the Rehab Act

(WASHINGTON)—The American Federation of Government Employees today applauded a recent EEOC reversal of a case in which the Transportation Security Administration maintained that it does not have to abide by the Rehabilitation Act because of provisions in the Aviation Transportation Security Act, under which TSA was created and by which TSA is governed.

In Chapman v. Department of Homeland Security, the complainant said he was denied proper accommodation during TSA’s hiring assessment process, claiming discrimination based on hearing loss and age. The case was assigned to an EEOC Administrative Judge, who dismissed the claims ruling that they were “not cognizable under the Rehabilitation Act because that act was superseded by the ATSA.” The complainant appealed and the EEOC reversed TSA’s dismissal and remanded the case to a supervisory AJ.

AFGE long has argued that the ATSA does not supersede the Rehabilitation Act. The union most recently filed a post-hearing brief in James R. Roop v. Michael Chertoff, stating that there is no conflict between the ATSA-mandated qualification standards and acting within the parameters of the Rehab Act. AFGE cited Judith Getzlow v. Chertoff, in which the EEOC held that the “TSA must comply with the requirements of the Rehabilitation Act where there is no conflict between the ATSA-mandated qualification standards and the requirements of the Rehabilitation Act.”

In Roop, the complainant was a Transportation Security Officer who was diagnosed with non-alcoholic cirrhosis of the liver, which caused him to need a cane for walking and standing, among other symptoms. Roop was placed on light duty and shortly after applied for a TSA Approved Instructor (TAI) position. He was offered the TAI job, and fulfilled all of its duties. However, TSA removed him from the position and placed him on forced leave after management was observed wanting “the man with the cane away from the exit door and out of public sight.”

“TSA did not enter into evidence any evidence of conflict between the ATSA-mandated qualification standards and retaining Mr. Roop in his role as a TAI with limited screening duties,” said AFGE Attorney Gony Frieder Goldberg. “Similarly, the agency did not enter into evidence any evidence of conflict between ATSA-mandated qualification standards and providing Mr. Roop reasonable accommodation pursuant to the Rehabilitation Act.

“The only evidence entered by TSA was Assistant Federal Security Director Sophia Hardee’s testimony that the ATSA mandated qualification standards require that a screener be able to complete annual certification,” Goldberg added. “However, those qualifications do not require TSOs to be able to screen for their entire shift, nor do they require a TSO be able to stand through the entire shift. TSA was biased, unethical and acted in bad faith.”

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