United States Department of Labor
Office of Administrative Law Judges Law Library

NOTICE: THIS INDEX WAS PREPARED BY THE CIVIL RIGHTS DIVISION, OFFICE OF THE SOLICITOR, U.S. DEPARTMENT OF LABOR, FOR INTERNAL USE. IT IS NOT AN OFFICIAL INTERPRETATION OF THE CASES, AND WAS LAST REVISED IN NOVEMBER, 1996.

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Employer's safety and health obligations are not violated by the employment of an impaired individual. OFCCP v. E.E. Black, Ltd., 77-OFCCP-7R, Assistant Secretary Rec. Dec. and Order, February 26, 1979, slip op. at 21-23, aff'd, E.E. Black v. Marshall, 497 F. Supp. 1088 (D. Hi. 1980), E. E. Black v. Donovan, 26 FEP Cases 1183 (D. Hi. 1981).

Motion for summary judgment denied because of genuine issues of material fact (i.e., whether complainant was a qualified handicapped person and whether accommodating him would have been an unreasonable burden). OFCCP v. Graves Truck Line, Inc., 80-OFCCP-2, ALJ Order Denying Motion for Summary Judgment, April 16, 1980, slip op. at 3, dismissed, ALJ Order of Dismissal, November 4, 1981.

The employer has the burden of showing that accommodation would work undue hardship on the conduct of its business. OFCCP v. American Airlines, 79-OFCCP-2, ALJ Rec. Dec., June 30, 1980, slip op. at 10, aff'd, Deputy Under Secretary for Employment Standards, May 2, 1985.

Plaintiff did not establish that the defendant failed and refused to make a reasonable accommodation to the complainant. OFCCP v. Alabama Power Co., 80-OFCCP-33, ALJ Rec. Dec. and Order, December 13, 1982, slip op. at 82.

It is the burden of the contractor to establish that accommoda- tion to the physical and mental limitations of the individual is not reasonable. OFCCP v. Ozark Air Lines, Inc., 80-OFCCP-24, Deputy Under Secretary for Employment Standards, June 13, 1986, slip op. at 8.

Reasonable accommodation does not require the creation of a new position, a substantial alteration of job duties or an offer of employment in a position different from that which was sought. OFCCP v. Commonwealth Aluminum, 82 OFC-6, ALJ Rec. Dec. and Order, June 26, 1986, slip op. at 17, rev'd on other grounds, Assistant Secretary for Employment Standards Final Decision and Order, February 10, 1994, remanded sub. nom., Commonwealth Aluminum Corp., v. United States Department of Labor, No. 94-0071-0(c)(W.D. Ky. September 6, 1996).

It is unreasonable to expect the employer to accommodate an individual by assigning him to a specific light duty position when all employees are rotated on a regular basis among various jobs. OFCCP v. Yellow Freight Systems, Inc., 84-OFC-17, ALJ Rec. Dec., November 6, 1986, slip op. at 24, rev'd on other grounds, Acting Assistant Secretary for Employment Standards, Final Decision and Order of Remand, July 27, 1993; Reconsideration of Final Decision and Order, Acting Assistant Secretary, December 22, 1993; Order Approving Settlement and Dismissal, April 20, 1994.

The contractor violated Section 503 by failing to make a reasonable accommodation to complainants who were at most minimally impaired in their ability to lift and would have required slight accommodation, if any. OFCCP v. Texas Utilities Generating Co., 85-OFC-13, ALJ Rec. Dec., March 2, 1988, slip op. at 10, Assistant Secretary for Employment Standards Decision and Order of Remand, August 25, 1994; Consent Decree, April 15, 1996.

Supplying the complainant with a lighted magnifier without first understanding the nature of her problem or checking with an expert as to what device would help her is insufficient evidence to establish that the contractor fulfilled its duty to reasonably accommodate the complainant. OFCCP v. East Kentucky Power Cooperative Inc., 85-OFC-7, ALJ Rec. Dec. and Order, March 17, 1988, slip op. at 18, settled and dismissed, ALJ Order Approving Stipulated Dismissal, July 7, 1988.

The employer failed to gather sufficient information to enable it to make a determination as to reasonable accommodation for the complainant prior to terminating the complainant, where the employer did not consult experts or heed the expert advice of the complainant's optometrist. Id. at 17.

The employer, having failed to investigate possible accommodations, cannot claim that complainant's unwillingness to use an inappropriate device frees the employer of liability. Id. at 18.

Offering the complainant a less desirable position with less pay and requiring less skill (custodian with restrictions) than the position he was rejected from (production laborer) was not a reasonable accommodation. OFCCP v. PPG Industries, Inc., 86-OFC-9, ALJ Rec. Dec., May 17, 1988, slip op. at 29, aff'd on other grounds, Deputy Assistant Secretary for Employment Standards Final Dec. and Remand Order on Remedy, January 9, 1989, dismissed on APA review, PPG v. United States, C.A. No. 89-0757 JGP (D.D.C. 1993); reversed and remanded, 52 F 3d. 362 (D.C. Cir. 1995); Consent Decree, September 24, 1996.

Reasonable accommodation is not an issue in determining whether an applicant is a qualified handicapped individual because the applicant (despite having a back impairment) is physically capable of performing the job of cement truck operator without restrictions. OFCCP v. Texas Industries, Inc., 80-OFCCP-28, Assistant Secretary for Employment Standards Decision and Order, June 7, 1988, slip op. at 16 n.8, rev'g, ALJ Rec. Dec., March 4, 1981, slip op. at 11-12, remanded on other grounds, Assistant Secretary for Employment Standards Order of Remand and Stay of Enforcement, September 27, 1990, ALJ Decision and Order on Remand, March 11, 1991, Remanded on other grds, Assistant Secretary for Employment Standards Decision and Order of Remand, January 27, 1995, Consent Decree, June 21, 1996.

An employer is not required to make a co-worker lift heavy packages as reasonable accommodation for a handicapped person. OFCCP v. United Parcel Service, Inc., 87-OFC-17, ALJ Rec. Dec., March 22, 1989, slip op. at 17, rev'd on other grounds, Deputy Assistant Secretary for Employment Standards Final Decision and Order, November 22, 1991.

Where the plaintiff makes a prima facie case that the complainant was capable of performing an alternative job, then the contractor has the burden of showing that a transfer to that job is an unreasonable accommodation. Id. at 17-18, rev'd on other grounds, Deputy Assistant Secretary for Employment Standards Final Decision and Order, November 22, 1991.

Transferring an asthmatic employee to an alternative position constituted a partial accommodation to her condition, but the concurrent reduction in income is not consistent with reasonable accommodation. OFCCP v. Mountain Bell Telephone Co., 87-OFC-25, ALJ Rec. Dec. and Order, November 3, 1989, slip op. at 12, remanded on other grounds, Assistant Secretary for Employment Standards Order Denying Motion to Strike, Decision and Order of Remand, August 25, 1994; Consent Decree, February 9, 1995.

Under Jasany v. U.S. Postal Service, 755 F.2d 1244 (6th Cir. 1985), the burden is on plaintiff to establish, as part of the prima facie case, the existence of an impairment that substantially limits a major life activity. The burden then shifts to defendant employer to demonstrate that challenged criteria are job related and required by business necessity, and that reasonable accommodation is not possible. OFCCP v. Louisville Gas & Electric Co., 88-OFC-12, ALJ Rec. Dec. and Order, January 29, 1990, slip op. at 9 and 12, aff'd, Special Assistant to the Assistant Secretary for Employment Standards Final Dec. and Administrative Order, January 14, 1992; Consent Decree, May 28, 1992.

If defendant shows that employee was not qualified to perform the essential functions of the job without a reasonable probability of substantial harm, court must determine whether reasonable accommodation could be made, without undue hardship, sufficient to enable the applicant to perform the essential requirements of the job without a reasonable probability of substantial injury. Ibid., aff'd, Special Assistant to the Assistant Secretary for Employment Standards Final Dec. and Administrative Order, January 14, 1992; Consent Decree, May 28, 1992.

Evidence that a lifting requirement is essential to the job of janitor was insufficient to show that contractor could not reasonably accommodate employee's perceived back condition. Id. at 12, aff'd, Special Assistant to the Assistant Secretary for Employment Standards Final Dec. and Administrative Order, January 14, 1992; Consent Decree, May 28, 1992.

The obligation to accommodate is an affirmative one and requires an employer to gather information from the applicant and from qualified experts in order to determine what accommodations are necessary; a good faith belief is insufficient. Ibid., aff'd, Special Assistant to the Assistant Secretary for Employment Standards Final Dec. and Administrative Order, January 14, 1992; Consent Decree, May 28, 1992.

The contractor has a duty to suggest reasonable accommodations and to test an applicant's performance with them prior to the contractor's decision not to hire the applicant. Ibid., aff'd, Special Assistant to the Assistant Secretary for Employment Standards Final Dec. and Administrative Order, January 14, 1992; Consent Decree, May 28, 1992.

Contractor failed to show that it gathered sufficient information concerning applicant's perceived handicap (lumbar lordosis) to enable it to make a determination as to reasonable accommodation; the contractor made no study or attempt to accommodate the applicant and did not consult with a single expert as to the feasibility of reasonably accommodating someone with lumbar lordosis. Ibid., aff'd, Special Assistant to the Assistant Secretary for Employment Standards Final Dec. and Administrative Order, January 14, 1992; Consent Decree, May 28, 1992.

Contractor's duty under Section 503 is not to eliminate an essential function of a job in order to accommodate, but to reasonably accommodate a handicapped individual so that he may perform the essential functions of the job. Id. at 13, aff'd, Special Assistant to the Assistant Secretary for Employment Standards Final Dec. and Administrative Order, January 14, 1992; Consent Decree, May 28, 1992.

Contractor met its burden of proving that accommodation of an epileptic employee would impose an undue hardship on its business where it was uncontroverted that there were no other positions at the plant for which the employee was qualified, the more dangerous duties of her job could not be assigned to other employees because such duties were a significant portion of the job, and the duties of the job were structured around scheduled rotations during each shift which prevented any particular duty station from being customized to meet the needs of a particular employee. OFCCP v. Keebler Co., 87-OFC-20, ALJ Rec. Dec. and Order, March 4, 1991, slip op. at 18, remanded on other grounds, Assistant Secretary for Employment Standards Decision and Order of Remand, December 21, 1994; ALJ Recommended Decision and Order dismissing case, July 20, 1995; affirmed, ARB Final Decision and Order, September 4, 1996; Motion for Reconsideration pending.

No accommodation is necessary where the evidence shows that complainant's impairment, arteriovenous malformation, does not substantially limit his employability. OFCCP v. Exide Corporation, 84-OFC-11, Acting Assistant Secretary for Employment Standards Dec. and Final Order, April 30, 1991, slip op. at 8-9, vacated on other grounds, Exide Corporation v. Martin, Civil Action No. 91-242, (E.D. Ky. 1992).

The required accommodation is an accommodation to the individual's particular handicap, not to matters unrelated to the complainant's physical or mental ability to perform the job. Thus, where contractor regarded complainant as epileptic and rejected him for failing to obtain a doctor's note releasing him to work on dangerous equipment, the contractor had no duty to accommodate complainant by allowing him additional time to obtain the release or by allowing him to return to work without such a release. Id. at 9, n.6, vacated on other grounds, Exide Corporation v. Martin, Civil Action No. 91-242, (E.D. Ky. 1992).

It would be unreasonable to require contractor to provide handicapped employee in senior staff geologist job with training necessary to elevate his skills to an acceptable level, where such training would require years of on-the-job training, where contractor employed only experienced geologists at higher salaries than other employees and where contractor employed such geologists in only one department. OFCCP v. Texas Eastern Transmission Corporation, 88-OFC-30, ALJ Rec. Dec. and Order of Dismissal, April 30, 1991, slip op. at 11, stipulated dismissal, June 19, 1991.

Contractor has no duty to train or transfer a handicapped employee as an accommodation, where employee's handicap was not a factor in contractor's determination that employee's inadequate job performance warranted termination. Ibid.

Plaintiff has the burden of establishing the existence of an impairment that substantially limits a major life activity as an element of plaintiff's prima facie case. If plaintiff fails to establish a prima facie case, it is unnecessary to address the issue of reasonable accommodation. OFCCP v. United Parcel Service, Inc., 88-OFC-7, ALJ Rec. Dec. and Order, August 1, 1991, slip op. at 8, stipulated dismissal, Special Assistant to the Assistant Secretary for Employment Standards Notice of Case Closing, January 14, 1992.

Because contractor was bound by a collective bargaining agreement which placed no burden on the contractor to create a new job for complainant or transfer him to another position, contractor did not breach its duty to provide reasonable accommodations to complainant by failing to place him in an indoor job which required no heavy lifting, as his doctor recommended. Id. at 12.

Because contractor failed to show that employment of complainant with monocular vision would pose a reasonable probability of substantial harm, it is unnecessary to address the issue of accommodation. OFCCP v. Norfolk and Western Railway Co., 90-OFC-1, ALJ Rec. Dec. and Order, June 26, 1991, slip op. at 37, n.21; Consent Decree, November 22, 1991.

Because OFCCP failed to show that complainant applied for a transfer to an available position and that contractor rejected her for that position, OFCCP failed to establish burden of proof and production concerning complainant's request for a transfer. OFCCP v. United Parcel Service, Inc., 87-OFC-17, Deputy Assistant Secretary for Employment Standards Final Dec. and Order, November 22, 1991, slip. op. at 11.

Assistant Secretary declines to rule on whether the duty to make reasonable accommodation under Section 503 includes an obligation to transfer or assign a handicapped employee who can no longer perform his present job. However, in the event such a duty is found, OFCCP must show that there existed available jobs into which complainant could transfer. Id. at 11 and n.11.

Assuming OFCCP established that complainant applied for a transfer to an available job and was rejected, OFCCP failed to show that the complainant was rejected because of her handicap, in light of evidence that other employees, who must be presumed not to have been handicapped, had been denied such transfers in the past. Id. at 11-12.

Section 503 requires contractors to take affirmative action to reasonably accommodate handicapped individuals to enable them to perform the functions essential to the job. OFCCP v. Cissell Manufacturing Co., 87-OFC-26, ALJ Rec. Dec. and Order, May 22, 1992, slip op. at 13; affirmed, Acting Assistant Secretary for Employment Standards Final Decision and Order, February 14, 1994; final decision vacated sub. nom., Cissell Manufacturing Company v. U. S. Department of Labor, No. 94-0184 (W.D. Ky., May 24, 1994); appeal pending.

Section 503 imposes an affirmative action obligation on Government contractors to employ "qualified handicapped individuals," defined as those capable of performing a particular job with reasonable accommodation. Ibid.; affirmed, Acting Assistant Secretary for Employment Standards Final Decision and Order, February 14, 1994; final decision vacated sub. nom., Cissell Manufacturing Company v. U. S. Department of Labor, No. 94-0184 (W.D. Ky., May 24, 1994); appeal pending.

OFCCP must show that the handicapped individual was "otherwise qualified" for employment; that the individual with or without reasonable accommodation can perform the essential functions of the position in question. Ibid.; affirmed, Acting Assistant Secretary for Employment Standards Final Decision and Order, February 14, 1994; final decision vacated sub. nom., Cissell Manufacturing Company v. U. S. Department of Labor, No. 94-0184 (W.D. Ky., May 24, 1994); appeal pending.

Evidence that employee was technically competent or qualified for his job but could not perform essential functions of repetitive stooping and bending, coupled with evidence that contractor plainly refused to accommodate employee's disability, was sufficient to establish a prima facie case that employee was treated in a discriminatory manner and to shift burden to contractor to rebut the inference of discrimination. Id. at 13-14; affirmed, Acting Assistant Secretary for Employment Standards Final Decision and Order, February 14, 1994; final decision vacated sub. nom., Cissell Manufacturing Company v. U. S. Department of Labor, No. 94-0184 (W.D. Ky., May 24, 1994); appeal pending.

Where employee with arthritic knee condition was technically competent and qualified for his position as line driver, but was unable to perform the essential function of the job, which required constant bending and stooping, the analysis should focus on whether contractor could reasonably accommodate individual to enable him to perform the essential functions of the job. Ibid.; affirmed, Acting Assistant Secretary for Employment Standards Final Decision and Order, February 14, 1994; final decision vacated sub. nom., Cissell Manufacturing Company v. U. S. Department of Labor, No. 94-0184 (W.D. Ky., May 24, 1994); appeal pending.

It was the contractor's burden to prove that employee's inability to stoop and bend is so essential to his work to be deemed a bona fide occupational qualification or a business necessity for all jobs in employee's job classification and that contractor was thereby unable in good faith to accommodate employee's limitations. Id. at 14; affirmed, Acting Assistant Secretary for Employment Standards Final Decision and Order, February 14, 1994; final decision vacated sub. nom., Cissell Manufacturing Company v. U. S. Department of Labor, No. 94-0184 (W.D. Ky., May 24, 1994); appeal pending.

Reasonable accommodation does not require the contractor to eliminate an essential part of the job or to make a fundamental alteration in the nature of the job. Ibid. ; affirmed, Acting Assistant Secretary for Employment Standards Final Decision and Order, February 14, 1994; final decision vacated sub. nom., Cissell Manufacturing Company v. U. S. Department of Labor, No. 94-0184 (W.D. Ky., May 24, 1994); appeal pending.

It is the contractor's burden to demonstrate a good faith effort to adjust its legitimate needs to a handicapped position, which does not, if fairly viewed, prevent the employee from doing the job. Ibid.; affirmed, Acting Assistant Secretary for Employment Standards Final Decision and Order, February 14, 1994; final decision vacated sub. nom., Cissell Manufacturing Company v. U. S. Department of Labor, No. 94-0184 (W.D. Ky., May 24, 1994); appeal pending.

Contractor's claim of an inability to accommodate employee's arthritic knee condition was contradicted by the fact that employee capably performed one job in his classification and contractor accommodated several other employees in the past. Id. at 14-15; affirmed, Acting Assistant Secretary for Employment Standards Final Decision and Order, February 14, 1994; final decision vacated sub. nom., Cissell Manufacturing Company v. U. S. Department of Labor, No. 94-0184 (W.D. Ky., May 24, 1994); appeal pending.

Contractor violated Section 503 by failing to attempt to reasonably accommodate employee's medical limitations. Id. at 15; affirmed, Acting Assistant Secretary for Employment Standards Final Decision and Order, February 14, 1994; final decision vacated sub. nom., Cissell Manufacturing Company v. U. S. Department of Labor, No. 94-0184 (W.D. Ky., May 24, 1994); appeal pending.

Contractor's duty to accommodate is an affirmative one requiring contractor to gather sufficient information from the employee or prospective employee and from qualified experts to determine what accommodations are necessary and possible within their working context. Ibid. ; affirmed, Acting Assistant Secretary for Employment Standards Final Decision and Order, February 14, 1994; final decision vacated sub. nom., Cissell Manufacturing Company v. U. S. Department of Labor, No. 94-0184 (W.D. Ky., May 24, 1994); appeal pending.

In order to successfully show that an employee has been unlawfully discriminated against in violation of Section of 503, it must be established that: 1) the alleged violator is an employer covered under the Act; 2) the employee is handicapped; and 3) the employee is qualified for the position with or without reasonable accommodation. The contractor then has the opportunity to demonstrate that the accommodation would pose an undue burden on the contractor's business. OFCCP v. Exxon Corporation, 92-OFC-4, ALJ Rec. Dec. and Order, June 15, 1993, slip op. at 22, affirmed, Administrative Review Board Final Decision and Order, October 28, 1996.

Assuming that complainant (a recovering alcoholic) needed accommodation to enable him to perform a safety-sensitive job, contractor could have provided a reasonable accommodation without undue hardship by randomly testing complainant for alcohol use, and by requiring him to continue attending AA meetings. Id. at 30-31; affirmed, Administrative Review Board Final Decision and Order, October 28, 1996, at 23.

Business necessity and financial cost are among the factors to be considered in determining whether an accommodation imposes undue hardship. Id. at 31; affirmed, Administrative Review Board Final Decision and Order, October 28, 1996, at 23.

Contractor's decision to transfer complainant (a recovering alcoholic) to a non-safety sensitive job does not constitute a reasonable accommodation because there existed much less extreme alternatives which would have ensured that complainant safely performed his job duties. Id. at 32; affirmed, Administrative Review Board Final Decision and Order, October 28, 1996, at 23.

There is no basis in the Act to permit a contractor to require an employee or applicant for employment to undergo a treatment, operation or drug regimen before being considered for employment or being entitled to other terms, conditions or privileges of employment. That decision is a private one to be made by each individual with a handicap in consultation with his or her physician and other health professionals. Rather, the contractor has an obligation under the duty to make reasonable accommodation to permit an individual with a disability the opportunity to provide and utilize equipment, aids or services that an employer is not required to provide as a reasonable accommodation. OFCCP v. Commonwealth Aluminum Corp., 82-OFC-6,Assistant Secretary for Employment Standards Final Decision and Order, February 10, 1994, at 14-15; remanded sub. nom., Commonwealth Aluminum Corp., v. United States Department of Labor, No. 94-0071-0(c)(W.D. Ky. September 6, 1996).

A government contractor may not refuse to comply with the obligation to make reasonable accommodation to the physical limitations of an employee under Section 503, because it has a company policy of no light duty jobs. Such a refusal violates § 503. OFCCP v. Cissell Manufacturing Co., 87-OFC-26, Acting Assistant Secretary for Employment Standards Final Decision and Order, February 14, 1994, at 1; final decision vacated sub. nom., Cissell Manufacturing Company v. U. S. Department of Labor, No. 94-0184 (W.D. Ky., May 24, 1994); appeal pending.

Contractors "must make reasonable accommodation to the physical . . . limitations of an employee . . . unless the contractor can demonstrate that the accommodation would impose an undue hardship on the conduct of the contractor's business." Id. at 7; final decision vacated sub. nom., Cissell Manufacturing Company v. U. S. Department of Labor, No. 94-0184 (W.D. Ky., May 24, 1994); appeal pending.

Cissell made no attempt to accommodate the complainant when it strictly adhered to its "no light duty" policy. Furthermore, its justification for refusing to accommodate the complainant, (1) insisting that each of its employees must be available to perform any job in the department to which they are assigned, and (2) asserting that every job in the welding and spot welding departments "require[s] some stooping or bending," which complainant was unable to do, did not meet its burden under the regulations. Id. at 7-8; final decision vacated sub. nom., Cissell Manufacturing Company v. U. S. Department of Labor, No. 94-0184 (W.D. Ky., May 24, 1994); appeal pending.

Cissell had an affirmative obligation under Section 503 and the regulations to gather all relevant information about the complainant's condition and the job duties he was capable of performing, and to make reasonable accommodations to his limitations unless to do so unduly burdened its business. Id. at 9; final decision vacated sub. nom., Cissell Manufacturing Company v. U. S. Department of Labor, No. 94-0184 (W.D. Ky., May 24, 1994); appeal pending.

Cissell breached its duty to accommodate a qualified employee with a handicap by strictly adhering to its "no light duty" policy; despite said employee's request to be assigned to existing jobs that he thought himself capable of performing, and voluntarily bidding to take lower paying jobs which required less bending. Id. at 9-10; final decision vacated sub. nom., Cissell Manufacturing Company v. U. S. Department of Labor, No. 94-0184 (W.D. Ky., May 24, 1994); appeal pending.

The Assistant Secretary held that Cissell's arguments that it was not required to eliminate one of the essential functions of the job, to make fundamental modifications in the job, or to reassign the complainant to a permanent light duty position were without merit. Id. at 10-14 and n.8; final decision vacated sub. nom., Cissell Manufacturing Company v. U. S. Department of Labor, No. 94-0184 (W.D. Ky., May 24, 1994); appeal pending.

The Assistant Secretary held that "[b]ecause a particular function is found to be essential does not relieve the . . . employer of its burden of showing that the handicapped individual cannot be reasonably accommodated." Id. at 11; final decision vacated sub. nom., Cissell Manufacturing Company v. U. S. Department of Labor, No. 94-0184 (W.D. Ky., May 24, 1994); appeal pending.

The Assistant Secretary held that whether a physical requirement is an essential function of a job "requires . . . a highly fact-specific inquiry . . . based upon more than . . . a job description and should reflect the actual functioning and circumstances" of the employer. Id. at 12; final decision vacated sub. nom., Cissell Manufacturing Company v. U. S. Department of Labor, No. 94-0184 (W.D. Ky., May 24, 1994); appeal pending.

Even where a physical requirement is an essential function of the overall position, the employer has the burden to show that the complainant could not be accommodated in a job within the position because not every accommodation related to an essential function necessarily eliminates that function. Id. at 12; final decision vacated sub. nom., Cissell Manufacturing Company v. U. S. Department of Labor, No. 94-0184 (W.D. Ky., May 24, 1994); appeal pending.

The employer cannot claim that other employee's rights under the collective bargaining agreement make accommodation an undue hardship where the contract gives the company broad discretion to make assignments and where the company failed to consult with the union about accommodation. Id. at 12-13; final decision vacated sub. nom., Cissell Manufacturing Company v. U. S. Department of Labor, No. 94-0184 (W.D. Ky., May 24, 1994); appeal pending.

Where contractor is a lessee of office space and common areas are subject to the control of the lessor, the failure to provide handicapped parking spaces is not a failure to accommodate. OFCCP v. First Federal Savings Bank of Indiana, 91-OFC-23, ALJ Recommended Decision and Order, June 29, 1994, at 15; reversed, Secretary of Labor, Final Decision and Order, October 26, 1995, at 5.

The ARB held that Exxon's transfer of complainant to a non-safety critical position, pursuant to Exxon's Drug and Alcohol Policy, which prohibits any employee who has or had a substance abuse problem from working in a safety designated position, was discrimination, not "accommodation." Exxon regarded complainant as being disabled, whereas in reality he was able to perform the job as well as any unimpaired individual with the requisite training and experience. These circumstances "are analogous to capable workers discriminated against because of their skin color or some other vocationally irrelevant characteristics." OFCCP v. Exxon Corporation d/b/a/ Exxon Company, 92-OFC-4, Final Decision and Order, Administrative Review Board, October 28, 1996, at 23.

The ARB held that the issue of whether the discrimination includes an employer's failure to make reasonable accommodation arises only where the disability "interferes with the individual's ability to perform up to the standards of the workplace. . . ." Id. at 23.

The ARB held that the key consideration [where accommodation may be required] is that "each case [must] be individually assessed to determine what type of monitoring would be necessary." Exxon's policy of blanket exclusion of all individuals who have had a substance abuse problem, from 1800 designated positions, does not achieve this result. Id. at 24.

An individual with a disability is responsible for informing the employer that accommodation is necessary. If transfer to a non-safety designated position truly were an accommodation, complainant legitimately could have refused it, at least under comparable Americans with Disabilities Act ("ADA") regulations. 29 CFR § 1630.9(d) ("A qualified individual with a disability is not required to accept an accommodation . . . which such qualified individual chooses not to accept.") Of course, if the individual cannot perform the essential functions of the job without accommodation, he or she will not be considered "qualified." Id. at 24 and n.30.

The ARB held that because Exxon was not required to make any modifications or adjustments"in its ordinary work rules, facilities, terms, and conditions" of employment to enable complainant to work, . . . [E]xxon was not entitled to choose the means of accommodation, i.e., involuntary transfer, because complainant did not require any accommodation. Id. at 25.

Even assuming that accommodation was required, involuntary transfer was not appropriate in this case. Section 503 contemplates accommodation in the particular job held by the employee unless business necessity or financial costs and expenses dictate otherwise. 41 CFR § 60-741.6(d). Section 503 presupposes an interactive process in arriving at suitable accommodation. Id. at 25-26.

The ARB agreed with the ALJ that Exxon had failed to demonstrate that "accommodation" in the form of testing, supervisor evaluation and continued Alcoholics Anonymous attendance would constitute an undue hardship. Consequently, complainant would not be subject to transfer since reassignment should be considered only when accommodation in the current assignment would pose undue hardship. Id. at 26.