The Rehabilitation Act and Federal Employment

• Published date: 01 October 1999
• DOI: 10.1177/0734371X9901900405
• Author: Robert D. Lee
• Date: 01 October 1999
• Subject Matter: Articles

The Rehabilitation Act and
Federal Employment
The Courts’ Application of the Law
ROBERT D. LEE, JR.
THE PENNSYLVANIA STATE UNIVERSITY
The Rehabilitation Act of 1973 includes Section 501 which, while not prohibiting discrimination against individu-
als with disabilities, calls for affirmative action in their "hiring, placement, and advancement "Now in existence for
more than a quarter century, the statute has a substantial body of case law that considers how Section 501 is to be
applied Particular attention has focused on plaintiffs’ and the government’s burdens in terms of prima facie cases,
reasonable accommodation, and being "otherwise qualified" The case law has not considered affirmative action The
discussion concludes by discussing options in how affirmative action might be applied in the new century for people
with disabilities in federal employment
uring
the 1990s, the focus of atten
animus, but rather of thoughtlessness and in-
t
tion concerning employment of in-
dividuals
difference-of benign neglect&dquo; (Alexander v.
with disabilities was on the
Choate, 1985, 295). With regard to Section
implementation of the Americans with Dis-
501, the law was intended to make the federal
abilities Act (ADA) of 1990 (Condrey &
government a model employer in this arena.
Brudney, 1998; Lee & Greenlaw, 1998-99).
This article begins by providing an over-
That law certainly merited considerable atten-
view of the law, the regulations that implement
tion given its wide-sweeping application, but
the law, and the track record experienced un-
the law has one significant exception. The ap-
der the law. The discussion then turns to a
proximately 2.8 million federal civilian work-
detailed analysis of how Section 501 has been
ers are excluded from the law.
interpreted and applied by federal courts. The
Instead of being covered by ADA, whose
focus then becomes broader, considering how
employment provisions did not take effect until
Section 501 fits into the overall schema of em-
1992, federal workers have long been protected
ployment law. The article concludes by con-
from disability discrimination by Section 501
1
sidering what problems exist with the law’s
of the Rehabilitation Act of 1973 (29 U.S.C.
implementation and whether the law needs to
§ 791). Interestingly, the law did not prohibit
be amended or merged with the Americans
employment discrimination but required each
with Disabilities Act.
federal agency to prepare &dquo;...an affirmative
action program plan for the hiring, placement,
OVERVIEW OF SECTION 501
1
and advancement of handicapped individu-
als....&dquo; and to update the plan annually. In a
The Rehabilitation Act and Section 501
1
1985 case involving the Rehabilitation Act, the
Several provisions of the Rehabilitation Act are
Supreme Court said, &dquo;Discrimination against
important in addition to Section 501 that per-
the handicapped was perceived by Congress
tains to federal employment. Section 502 ini-
to be most often the product, not of invidious
tiated efforts to reduce architectural barriers
45

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that block access to both employees and cli-
(The regulations still use &dquo;handicap&dquo; rather
ents of governments and businesses. Section
than the more politically correct term of &dquo;in-
503 prohibits employment discrimination
dividual with a disability.&dquo;) The regulations
against people with disabilities by contractors
provide guidance as to when a person with a
and subcontractors of the federal government.
disability is considered &dquo;qualified&dquo; for employ-
Section 504 protects people with disabilities
ment
and what constitutes &dquo;reasonable accom-
from being denied access to federal programs
modation.&dquo; Of
great importance is that regu-
or other programs that are in part supported
lations do not require affirmative action plans
by federal grants and contracts.
that entail setting goals and timetables for
Section 501 established an Interagency
achieving those goals as can be found in
Committee on Employees who are Individu-
EEOC’s regulations pertaining to affirmative
als with Disabilities. The president makes ap-
action for minorities and women (29 C.F.R. §
pointments to the committee. According to the
16801). The Supreme Court has distinguished
law, the council is co-chaired by the chair of
the affirmative action provision in Section 501
1
the Equal Employment Opportunity Commis-
from other parts of the Rehabilitation Act.
sion (EEOC) and the director of the Office of
Greater accommodations are required for in-
Personnel Management (OPM). The EEOC
dividuals with disabilities under Section 501
i
is an independent regulatory unit in the fed-
due to the affirmative action provision than
eral government, while OPM is the federal
under 504, which does not require affirmative
government’s central personnel agency, which
action. The latter section, according to the
reports directly to the president.
Court, only calls for what it described as an
As noted, Section 501 does not explic-
&dquo;evenhanded treatment of qualified handi-
itly prohibit employment discrimination but
capped persons&dquo; (Southeastern Community
rather requires federal agencies to establish af-
College v. Davis, 1979, p. 410; see Riccucci,
firmative action plans. The regulations adopted
1997 and Weber, 1998).
to enforce the law do prohibit discrimination
(29 C.ER. § 1614.203). These regulations were
Rehabilitation Act Amendments
promulgated by the Equal Employment Op-
As would be expected, the Rehabilitation Act
portunity Commission, even though the law
has been amended several times. In 1978,
is silent as to which agency has authority to
Congress amended the law to allow federal
issue regulations. The Congress and federal
employees and applicants for federal employ-
courts have acquiesced in EEOC’s assertion of
ment
to file suits (Rehabilitation, Comprehen-
authority in this respect. However, the Supreme
sive Services, and Developmental Disabilities
Court has ruled that in such instances a regu-
Amendments, 1978). The remedies provided
lation may not be controlling unless courts are
under Title VII of the Civil Rights Act of 1964
convinced that it reflects a &dquo;thoroughness evi-
were extended to Rehabilitation Act litigants.
dent in its consideration, the validity of its rea-
Attorneys’ fees also are available to those whose
soning, its consistency with earlier and later
discrimination complaints are proven in court.
pronouncements and all those factors which
The amendment provided that in fashioning
give it power to persuade&dquo; (EEOC v. Arabian
relief a federal court &dquo;may take into account
Oil Co, 1990, p. 257).
the reasonableness of the costs of any neces-
The regulations provide important de-
sary work place accommodation, and the avail-
tails not found in the statute. As will be dis-
ability of alternatives therefor or other appro-
cussed later, the
&dquo;
regulations define &dquo;handicap.&dquo;
priate relief in order to achieve an equitable
46

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and appropriate remedy&dquo; (sec.120).
regulations rather than the language of Sec-
The Civil Rights Act of 1991 also is
tion 501. The Postal Service and the Depart-
important. That law amended a variety of civil
ment
of Defense account for the vast majority
rights laws, including the Rehabilitation Act,
of cases that are filed in federal district court.
to permit awards of compensatory damages and
This is as expected given the concentrations of
punitive damages in cases involving intentional
civilian workers in these two units. The Postal
discrimination. Punitive damages, however, are
Service with 858,000 workers accounts for
unavailable to a plaintiff in any case against &dquo;a
about 31 percent of federal workers, and the
government, government agency or political
Defense Department with 727,000 workers
subdivision&dquo; (42 U.S.C. § 1981a). The law
accounts for an additional 26 percent. Federal
provides that when the plaintiff seeks these
employees with disabilities constitute 7 per-
damages, either the plaintiff or the respondent
cent of the overall federal work force (U.S.
may demand a jury trial.
Office of Personnel Management, 1998a,
The Rehabilitation Act Amendments of
1998b). A majority of the cases involve non-
1992 revised the language of the law to bring
desk jobs that require such activities as walk-
it up to contemporary standards. The use of
ing, driving, and sorting, as in mail operations.
&dquo;handicap&dquo; was replaced by &dquo;disability,&dquo; and
The typical district court case is one in
instead of a person being considered &dquo;handi-
which an employee submits a brief claiming
capped,&dquo; a person is said to be &dquo;with&dquo; a dis-
discrimination based on disability and the fed-
ability. The employment standards contained
eral agency submits a brief rebutting the
in the Americans with Disabilities Act were
charges and asks the court for summary judg-
extended to the nonaffirmative action employ-
ment, namely the dismissal of the case. Fed-
ment
aspects of the Rehabilitation Act, includ-
eral agencies often prevail at this stage. When
ing Section 501.
they do not, then the case is expected to go to
The Rehabilitation Act Amendments of
trial unless the plaintiff and agency agree to
1998 reactivated the law. Section 501 was re-
settle out of court. (The analysis here concen-
vised, stating &dquo;The term ’individual with a dis-
trates on
the most recent years of 1997 through
ability’ does not include an...