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.

Return to Table of Topics, 503 Index

The contractor's requirement of a "healthy back" for the job of apprentice carpenter bore the needed relationship to the job and constituted a valid job performance qualification. OFCCP v. E.E. Black, Ltd., 77-OFCCP-7R, ALJ Rec. Dec., September 26, 1978, slip op. at 16, aff'd, Assistant Secretary for Employment Standards, February 26, 1979, slip op. at 20, aff'd on other grounds, E.E. Black v. Marshall, 497 F. Supp. 1088 (D. Hi. 1980), E. E. Black v. Donovan, 26 FEP Cases 1183 (D. Hi. 1981).

The term "qualified" refers to qualification for work rather than qualification by reason of being a handicapped individual. OFCCP v. E.E. Black, Ltd., 77-OFCCP-7R, Assistant Secretary for Employment Standards Dec. and Order, February 26, 1978, slip op. at 16, aff'd on other grounds, E.E. Black v. Marshall, 497 F. Supp. 1088 (D. Hi. 1980), E. E. Black v. Donovan, 26 FEP Cases 1183 (D. Hi. 1981).

The Act excludes from protection only those individuals with conditions or impairments which are not the basis of employment discrimination and those individuals who are not capable of performing an employer's valid job requirement. Id.

The contractor is obligated to have scheduled reviews of job qualifications to determine which are required for job performance, business necessity or safe performance of the job. Id. at 19.

The fact that the complainant's impairment may impose a risk of workman's compensation claim is not an acceptable justification for imposing a particular job requirement. Id. at 20.

The defendant has the burden of showing that the condition imposed for employment evaluated the individual's current capacity to work. Id.

It is improper for an employer to determine whether an individual possesses the job requirement of a healthy back by merely evaluating whether the individual possesses a particular vertebrae. Id.

The fact than an individual has epilepsy may not be used by an employer automatically to exclude him or her from a particular job. OFCCP v. American Airlines, 79-OFCCP-2, ALJ Rec. Dec., June 30, 1980, slip op. at 9, aff'd, Deputy Under Secretary for Employment Standards, May 2, 1985.

When an employer discriminates based on criteria that would disqualify the individual from employment in the entire industry, this constitutes a substantial interference with a major life activity. OFCCP v. Southern Pacific Transportation Co., 79-OFC-10A, ALJ Rec. Dec. and Order, November 9, 1982, slip op. at 47; remanded on other grounds, Acting Assistant Secretary for Employment Standards Decision and Order of Remand, February 24, 1994; Consent Order, October 13, 1995.

A handicapped individual is qualified if he has an ability to function sufficiently in the position sought in spite of the handicap. Id. at 48; remanded on other grounds, Acting Assistant Secretary for Employment Standards Decision and Order of Remand, February 24, 1994; Consent Order, October 13, 1995.

Qualifications must be decided upon an examination of the actual ability of the individual, rather than by assumptions based upon preconceptions. Id. at 48-49; remanded on other grounds, Acting Assistant Secretary for Employment Standards Decision and Order of Remand, February 24, 1994; Consent Order, October 13, 1995.

Qualifications for a job must be measured at the time of the discriminatory act. Nonimminent risk of future injury does not make an otherwise capable person incapable. Id. at 49; remanded on other grounds, Acting Assistant Secretary for Employment Standards Decision and Order of Remand, February 24, 1994; Consent Order, October 13, 1995.

A statistical correlation between a characteristic of an individual and the frequency of some undesirable consequence can be used as a standard for qualification only if not direct individual test would distinguish the able from the unable. Id.; remanded on other grounds, Acting Assistant Secretary for Employment Standards Decision and Order of Remand, February 24, 1994; Consent Order, October 13, 1995.

One consideration that justifies discrimination based on mere statistical probability has been the degree of risk to human life. Id. at 54; remanded on other grounds, Acting Assistant Secretary for Employment Standards Decision and Order of Remand, February 24, 1994; Consent Order, October 13, 1995.

Where the qualification of an individual cannot be determined, then the employer may determine qualification by applying the criterion of a class characteristic if (1) the discriminatee is a member of that class, and (2) all or substantially all members of that class are immediately unable to do the job. Id. at 56; remanded on other grounds, Acting Assistant Secretary for Employment Standards Decision and Order of Remand, February 24, 1994; Consent Order, October 13, 1995.

When applying a statistical probability test and there is a risk of massive loss of human life, the degree of risk of harm, the degree of probability of defect, and the immediacy of the danger may be weighed against each other. Id.; remanded on other grounds, Acting Assistant Secretary for Employment Standards Decision and Order of Remand, February 24, 1994; Consent Order, October 13, 1995.

There are 13 pertinent factors to consider to measure qualifications for a job when individual ability cannot be directly tested. Id. at 58-59; remanded on other grounds, Acting Assistant Secretary for Employment Standards Decision and Order of Remand, February 24, 1994; Consent Order, October 13, 1995.

A determination of whether an employer's standard for qualification is reasonable and necessary must be evaluated in light of the economic and social consequences of the effect if all employers of substantially the same services imposed substantially the same employment restrictions. Id. at 59; remanded on other grounds, Acting Assistant Secretary for Employment Standards Decision and Order of Remand, February 24, 1994; Consent Order, October 13, 1995.

The employer is entitled to make its employment determination on the basis of the employee's condition at the time of the testing of that qualification and does not need to delay a hiring decision on the possibility that an applicant may become qualified. Id. at 62; remanded on other grounds, Acting Assistant Secretary for Employment Standards Decision and Order of Remand, February 24, 1994; Consent Order, October 13, 1995.

Rejecting an applicant based solely on certain abnormalities revealed in an x-ray may not be a sufficient reason. Id. at 82; remanded on other grounds, Acting Assistant Secretary for Employment Standards Decision and Order of Remand, February 24, 1994; Consent Order, October 13, 1995.

An indefinite risk of future orthopedic limitations does not make an individual unqualified. Id. at 85; remanded on other grounds, Acting Assistant Secretary for Employment Standards Decision and Order of Remand, February 24, 1994; Consent Order, October 13, 1995.

It is unlawful to ask an applicant whether he or she has received a pension, disability rating or disability compensation. Id. at 91; remanded on other grounds, Acting Assistant Secretary for Employment Standards Decision and Order of Remand, February 24, 1994; Consent Order, October 13, 1995.

When the purpose of employment criteria is to minimize the risk of massive loss of property both to the defendant and the public, the employer has wide discretion to determine if the criteria can lessen this risk. Id. at 111; remanded on other grounds, Acting Assistant Secretary for Employment Standards Decision and Order of Remand, February 24, 1994; Consent Order, October 13, 1995.

When an employee's work involves operating trains at slow velocities away from the public and the dangers presented are not significant, the employer is allowed reasonable, but not unlimited, leeway in forming a judgment on the safety questions. Id. at 112; remanded on other grounds, Acting Assistant Secretary for Employment Standards Decision and Order of Remand, February 24, 1994; Consent Order, October 13, 1995.

BFOQ is a narrow exception to the general prohibition of discrimination. OFCCP v. Ozark Air Lines Inc., 80-OFCCP-24, ALJ Rec. Dec., December 7, 1982, slip op. at 9, aff'd, Deputy Under Secretary for Employment Standards, June 13, 1986.

A person is a qualified handicapped individual only if he has the necessary job skills as well as the physical ability to perform the job requirement with "reasonable accommodation" for his impairment. OFCCP v. Alabama Power Co., 80-OFCCP-33, ALJ Rec. Dec., December 13, 1982, slip op. at 32; Consent Decree, December 23, 1986.

Based on evidence of record, employer did not improperly apply physical restrictions to the plaintiff. Id. at p. 42; Consent Decree, December 23, 1986.

Plaintiff was not a qualified handicapped individual because he lacked knowledge of how to perform the jobs for which he wished to be considered. Id. at 82; Consent Decree, December 23, 1986.

Before denying employment to an individual who is handicapped due to the lack of a natural limb, the individual should first be afforded a reasonable opportunity to demonstrate his or her ability to perform the employment through a performance test administered by competent evaluators. OFCCP v. Missouri Pacific Railroad, 81-OFCCP-8, ALJ Rec. Dec. and Order, March 17, 1983, slip op. at 8-9, aff'd, Deputy Under Secretary for Employment Standards, August 12, 1985.

A qualified handicapped person is one who fulfills all the requirements of the job sought, notwithstanding the handicap. OFCCP v. Commonwealth Aluminum, 82-OFC-6, ALJ Rec. Dec. and Order, June 26, 1986, slip op. at 16, 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).

To prove that an individual is qualified, it is not enough to show merely that the individual was considered for a position at the company. Id. 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).

A manic depressive individual can be a qualified handicapped individual. OFCCP v. American Commercial Barge Line, 84-OFC-13, ALJ Rec.Dec. and Order, September 30, 1986, slip op. at 22, rev'd on other grounds, Special Assistant to the Assistant Secretary for Employment Standards, Final Decision and Order, April 15, 1992.

The Act does not proscribe pre-employment physical examinations, and it does not prohibit the use of the results of such examinations so as to exclude from employment qualified handicapped individuals. If physical requirements exclude such persons from employment, these requirements must be consistent with business necessity and safe job performance. OFCCP v. Yellow Freight Systems, Inc., 82-OFC-2, ALJ Rec. Dec., September 30, 1986, slip op. at 17; remanded on other grounds, Acting Assistant Secretary Decision and Order of Remand, October 6, 1993; Consent Decree, January 31, 1994.

ALJ looks to complainant's past job performance to determine if he was a qualified handicapped person. Id. at 19; remanded on other grounds, Acting Assistant Secretary Decision and Order of Remand, October 6, 1993; Consent Decree, January 31, 1994.

The only relevant inquiry in determining whether a job applicant is a qualified handicapped individual is whether he is capable of doing the job at the time of his rejection. OFCCP v. Yellow Freight Systems, Inc., 84-OFC-17, ALJ Rec. Dec. and Order, November 6, 1986, slip op. at 20, rev'd on other grounds, Acting Assistant Secretary for Employment Standards Final Decision and Order of Remand, July 27, 1993; Order Approving Settlement and Dismissal, April 20, 1994.

The plaintiff has the burden of showing that the rejected applicants were capable, with reasonable accommodation if needed, of performing the job at the time of application. When the plaintiff has established that the applicants are qualified handicapped individuals, the defendant has the burden of rebutting this showing. OFCCP v. Central Power & Light Co., 82-OFC-5, ALJ Rec. Dec., March 30, 1987, slip op. at 5-6; Consent Decree, December 10, 1991.

Plaintiff's evidence, consisting of a doctor's medical examination, which included medical histories, and review of job descriptions, as well as applicant's prior work histories, proved that the applicants were "qualified handicapped individuals." Id.; Consent Decree, December 10, 1991.

The defendant's doctor's evidence as to applicants' fitness is not sufficient to rebut the plaintiff's showing that they are qualified handicapped individuals because the doctor made no medically based assessment of capability in light of job requirements and based his determination of fitness on pre-established causes of disqualification. Id.; Consent Decree, December 10, 1991.

The complaint, who has hospitalized for "psychotic depression," was not a qualified individual with a handicap because substantial evidence showed that she was disabled at the time of her termination. OFCCP v. Tyson Foods, Inc., 86-OFC-8, ALJ Rec. Dec. and Order, February 29, 1988, slip op. at 3, stipulated dismissal, Assistant Secretary for Employment Standards Notice of Closing Case, September 2, 1988.

Because the employer did not question complainant's ability to fulfill the job requirements of Accounting Clerk while she held the position, it cannot now claim she was incapable of doing the work. The question is not whether someone else could perform the job better or faster; rather, the question is whether the complainant could perform the essential functions of the position. OFCCP v. East Kentucky Power Cooperative, Inc., 85-OFC-7, ALJ Rec. Dec. and Order, March 17, 1988, slip op. at 14, settled and dismissed, ALJ Order Approving Stipulated Dismissal, July 7, 1988.

The complainant, whose major life activities of employment and transportation were substantially limited by her visual impairment, was a qualified handicapped individual because the record showed that she could perform the essential functions of her position before she was fired. Id. at 15.

Medical testimony that the complainant was more likely than someone with a perfect back to experience sudden back pain because of her congenital abnormality and prior surgery did not show that the complainant was unqualified to perform the duties of cement truck driver. OFCCP v. Texas Industries Inc., 80-OFCCP-28, Assistant Secretary for Employment Standards, June 7, 1988, slip op. at 13, rev'g, ALJ Rec. Dec., June 10, 1981, 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 grounds, Assistant Secretary for Employment Standards Decision and Order of Remand, January 27, 1995, Consent Decree, June 21, 1996.

The complainant was qualified to operate a cement truck by DOT standards since she held a valid DOT medical certificate and thus was not required to undergo a physical examination and be recertified prior to being hired as a driver by the defendant. Id. at 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 grounds, Assistant Secretary for Employment Standards Decision and Order of Remand, January 27, 1995, Consent Decree, June 21, 1996.

The complainant was a qualified handicapped individual because she was capable of performing the job at the time the defendant rejected her application. Id. at 15; 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 grounds, Assistant Secretary for Employment Standards Decision and Order of Remand, January 27, 1995, Consent Decree, June 21, 1996.

Safety is taken into consideration but, where there is not imminent risk of injury, safety is not determinative of whether an applicant for employment is a qualified handicapped individual. Id. at 16; 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 grounds, Assistant Secretary for Employment Standards Decision and Order of Remand, January 27, 1995, Consent Decree, June 21, 1996.

Because the complainant is capable of performing the job of cement truck operator without restrictions, reasonable accommodation is not an issue in determining whether she is a qualified handicapped individual. Id.; 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 grounds, Assistant Secretary for Employment Standards Decision and Order of Remand, January 27, 1995, Consent Decree, June 21, 1996.

Where drivers have been found to be qualified under DOT standards, they also meet the definition of qualified handicapped individuals under the Rehabilitation Act. OFCCP v. Yellow Freight Systems, Inc., 79-OFCCP-7, Associate Deputy Under Secretary for Employment Standards Dec. and Order of Remand, April 8, 1987, slip op. at 19, n.13, rev'g and remanding, ALJ Rec. Dec., June 30, 1982, remanded on other grounds, Special Assistant to the Assistant Secretary for Employment Standards, August 24, 1992; Consent Decree, February 2, 1993.

The defendant required back x-rays results of job applicants which were not expressly required by DOT regulations, thus the defendant had exercised its privilege to impose stricter standards than the minimum standard required by the DOT. Therefore, the rejection of the applicants based purely on those x-rays results was not tantamount to disqualification because of DOT standards. OFCCP v. Yellow Freight Systems, Inc., 79-OFCCP-7, ALJ Rec. Dec. on Remand, August 26, 1988, slip op. at 50-52, remanded on other grounds, Special Assistant to the Assistant Secretary for Employment Standards, August 24, 1992; Consent Decree, February 2, 1993.

Because the contractor imposed a more stringent requirement than DOT, it was incumbent upon the defendant to consider an applicant's work history and medical data, and independently assess both the probability and severity of potential injury. Id. at 53, remanded on other grounds, Special Assistant to the Assistant Secretary for Employment Standards, August 24, 1992; Consent Decree, February 2, 1993.

A record containing conflicting, largely theoretical, and speculative medical evidence is inadequate to support a finding that all drivers with the same back conditions as complainant's are unable to operate their vehicles safely. Id. at 61-62, remanded on other grounds, Special Assistant to the Assistant Secretary for Employment Standards, August 24, 1992; Consent Decree, February 2, 1993.

The intervenor has demonstrated, through his past experience in the job and his spare time activities, that he has the physical skills necessary to perform the PPG production laborer job. OFCCP v. PPG Industries, Inc., 86-OFC-9, Deputy Assistant Secretary for Employment Standards Final Dec. and Remand Order on Remedy, January 9, 1989, slip op. at 15-16, aff'g, ALJ Rec. Dec., May 17, 1988, slip op. at 20; dismissed on APA review, PPG v. United States, C.A. No. 89-0757 JGP (D.D.C.); reversed and remanded, 52 F 3d. 362 (D.C. Cir. 1995); Consent Decree, September 24, 1996.

Section 503 does not eliminate an employer's right and, in some instances, obligation to enforce reasonable job qualifications. OFCCP v. United Airlines, Inc., 86-OFC-12, ALJ Rec. Dec. and Order, February 3, 1989, slip op. at 9; remanded on other grounds, Assistant Secretary for Employment Standards Decision and Order of Remand, December 22, 1994.

If the job qualification is reasonable, then the employer may consider the handicapped employee's disability in deciding whether he or she is qualified for the position at issue. Id.; remanded on other grounds, Assistant Secretary for Employment Standards Decision and Order of Remand, December 22, 1994.

If the complainant does pose a significant risk of injury or harm in the workplace and reasonable accommodation cannot eliminate that risk, he is not "otherwise qualified" for the job, and United was and is not obligated to place him in the workplace. Id. at 10; remanded on other grounds, Assistant Secretary for Employment Standards Decision and Order of Remand, December 22, 1994.

The airline's policy of categorically excluding insulin dependent diabetics from the full duties of the ramp serviceman position was and is proper under the implementing regulations of Section 503. Id.; remanded on other grounds, Assistant Secretary for Employment Standards Decision and Order of Remand, December 22, 1994.

Complainant was not a "qualified handicapped individual" because lifting in excess of 40 lbs. was an essential part of complainant's job, and reasonable accommodation is intertwined with what a handicapped person can do for herself. OFCCP v. United Parcel Service, Inc., 87-OFC-17, ALJ Rec. Dec. and Order, March 22, 1989, slip op. at 17, rev'd on other grounds, Deputy Assistant Secretary for Employment Standards Final Decision and Remand Order, November 22, 1991.

Where Assistant Secretary found that complainant was qualified as a cement truck driver and ordered contractor to reinstate her in the next available job for which she is qualified, contractor can reject her as physically unqualified only if a medical examination reveals that there has been some deterioration of her back or other change in her physical condition which now makes her physically unable to perform the duties of the job. Rejection may also be based on any additional physical qualification, if any, which the Department of Transportation has imposed since her previous rejection. OFCCP v. Texas Industries, Inc., 80-OFCCP-28, Assistant Secretary for Employment Standards Order of Remand and Stay of Enforcement, September 27, 1990, slip op. at 9, ALJ Dec. and Order on Remand, March 11, 1991; remanded on other grounds, Assistant Secretary for Employment Standards Decision and Order of Remand, January 27, 1995, Consent Decree, June 21, 1996.

The only relevant inquiry in determining whether a rejected applicant is qualified is whether such applicant was capable of performing the job at the time he was rejected. OFCCP v. Rowan Companies, Inc., 89-OFC-41, ALJ Rec. Dec. and Order, April 3, 1991, slip op. at 7, remanded on other grounds, Special Assistant to the Assistant Secretary for Employment Standards Dec. and Order of Remand, May 28, 1992, ALJ Rec. Dec. and Order on Remand, January 4, 1993; remanded on other grounds, Assistant Secretary for Employment Standards Order of Partial Remand, April 11, 1995; Second ALJ Decision and Order on Remand, March 11, 1996; pending, Administrative Review Board.

Evidence that complainant performed similar work either prior to or after rejection by contractor is not the only method by which OFCCP may prove an applicant qualified. Ibid., remanded on other grounds, Special Assistant to the Assistant Secretary for Employment Standards Dec. and Order of Remand, May 28, 1992, ALJ Rec. Dec. and Order on Remand, January 4, 1993; remanded on other grounds, Assistant Secretary for Employment Standards Order of Partial Remand, April 11, 1995; Second ALJ Decision and Order on Remand, March 11, 1996; pending, Administrative Review Board.

Medical evidence as to the complainant's physical functional capacity as measured against the job's exertional demands is a more direct and sensible method for proving complainant was qualified. Ibid., remanded on other grounds, Special Assistant to the Assistant Secretary for Employment Standards Dec. and Order of Remand, May 28, 1992, ALJ Rec. Dec. and Order on Remand, January 4, 1993; remanded on other grounds, Assistant Secretary for Employment Standards Order of Partial Remand, April 11, 1995; Second ALJ Decision and Order on Remand, March 11, 1996; pending, Administrative Review Board.

Because the medical evidence showed that each of the rejected applicants was physically capable of performing the jobs of roustabout and floorhand, and there was nothing in the record which suggested the presence of a risk of injury so immediate as to prevent any of the applicants from being considered presently capable of performing those jobs, each applicant was "qualified" under Section 503 and the regulations. Id. at 7, n.11, remanded on other grounds, Special Assistant to the Assistant Secretary for Employment Standards Dec. and Order of Remand, May 28, 1992, ALJ Rec. Dec. and Order on Remand, January 4, 1993; remanded on other grounds, Assistant Secretary for Employment Standards Order of Partial Remand, April 11, 1995; Second ALJ Decision and Order on Remand, March 11, 1996; pending, Administrative Review Board.

Complainant was a "qualified" handicapped individual able to perform the jobs in issue once his doctor released him to return to work at "full strength;" he was physically able and had the work experience necessary to perform the essential functions of the jobs, he had no physical limitations and he met the qualifications for the positions. OFCCP v. Exide Corporation, 84-OFC-11, Acting Assistant Secretary for Employment Standards Dec. and Final Order, April 30, 1991, slip op. at 7, vacated sub. nom., Exide Corporation v. Martin, Civil Action No. 91-242, (E.D. Ky. 1992), slip op. at 16.

An employee is not considered qualified if he fails to meet the legitimate expectations of his employer. OFCCP v. Texas Eastern Transmission Corporation, 88-OFC-30, ALJ Rec. Dec. and Order of Dismissal, April 30, 1991, slip op. at 8, stipulated dismissal, June 19, 1991.

OFCCP failed to establish that handicapped employee was qualified for a senior staff geologist job absent testimony from co-worker or supervisor vouching for employee's skill and abilities and absent evidence that employee completed a work assignment demonstrating his ability to perform original analysis. Rather, ALJ credited testimony from three supervisors that employee failed to perform a particular job assignment successfully. Id. at 10.

The fact that employee received a satisfactory performance evaluation in his initial evaluation is not dispositive of whether employee was qualified. Id. at 10-11.

In order to invoke the protection of the Rehabilitation Act, complainant must demonstrate that he is a qualified handicapped individual within the meaning of 41 CFR 60-741.2. OFCCP v. Norfolk and Western Railway Co., 90-OFC-1, ALJ Rec. Dec. and Order, June 26, 1991, slip op. at 29-30; Consent Decree, November 22, 1991.

The only relevant inquiry in determining whether a rejected applicant is qualified is whether such applicant was capable of performing the job at the time he was rejected. Ibid.

Uncontradicted evidence that complainant was capable of performing the physical requirements of the brakeman/conductor job when he returned to work for a short time after an accident causing his monocular condition was sufficient to establish that complainant was "qualified." Ibid.

Because non-imminent risk of future injury does not make an otherwise capable person incapable, contractor's claim that complainant was not qualified for the brakeman/conductor job because he is at a risk of injury in that job should be rejected. Id. at 30, n.9.

Any qualification based on the risk of future injury must be examined with special care if the Rehabilitation Act is not to be circumvented easily, since almost all handicapped persons are at a greater risk of work-related injuries. Id. at 31, n.10.

Determining whether a complainant is "qualified" for a particular job requires a two-part inquiry that is individualized and intensely factual: it must be determined whether the individual can perform the essential functions of the job and, if not, whether reasonable accommodation would enable him to do so. OFCCP v. Holly Farms Foods, Inc., 91-OFC-15, ALJ Order Denying Plaintiff's Motion to Deem Admitted Requests for Admission and for Summary Judgment, October 24, 1991, slip op. at 6; Consent Decree, June 2, 1993.

Plaintiff must establish that employee with perceived lumbar lordosis was a qualified handicapped individual. OFCCP v. Louisville Gas & Electric Co., 88-OFC-12, ALJ Rec. Dec. and Order, January 29, 1990, slip op. at 10, 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 gather sufficient information as required under Mantolete v. Bolger, 767 F.2d 1416 (9th Cir. 1985), to make a reasoned judgement on whether employee's perceived impairment (lumbar lordosis) prevented him from performing the essential requirements of the job without a reasonable probability of substantial harm to himself or others. Thus, contractor failed to carry its burden and establish that employee was not a qualified handicapped individual. Id. at 11, 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.

The standard for the "otherwise qualified" inquiry is the same in Section 503 cases as in cases arising under Section 501 and Section 504 of the Rehabilitation Act, which impose a similar affirmative action burden on Government agencies and the postal service. OFCCP v. Cissell Manufacturing Co., 87-OFC-26, ALJ Rec. Dec. and Order, May 22, 1992, slip op. at 13, n.2; affirmed on other grounds, Acting Assistant Secretary for Employment Standards Final Decision and Order, February 14, 1994; final decision vacated sub. nom., Cissell Manufacturing Co., 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 on other grounds, Acting Assistant Secretary for Employment Standards Final Decision and Order, February 14, 1994; final decision vacated sub. nom., Cissell Manufacturing Co., 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 on other grounds, Acting Assistant Secretary for Employment Standards Final Decision and Order, February 14, 1994; final decision vacated sub. nom., Cissell Manufacturing Co., 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 on other grounds, Acting Assistant Secretary for Employment Standards Final Decision and Order, February 14, 1994; final decision vacated sub. nom., Cissell Manufacturing Co., 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 dryer, 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 on other grounds, Acting Assistant Secretary for Employment Standards Final Decision and Order, February 14, 1994; final decision vacated sub. nom., Cissell Manufacturing Co., v. U.S. Department of Labor, No. 94-0184 (W.D. Ky. May 24, 1994), appeal pending.

In 1978, Congress amended the definition of "handicapped individual," to provide that the term does not include any individual whose current use of alcohol prevents such individual from performing the duties of the job in question or whose employment, by reason of such current alcohol abuse, would constitute a direct threat to property or the safety of others. OFCCP v. Exxon Corporation, 92-OFC-4, ALJ Rec. Dec. and Order, June 15, 1993, slip op. at 23; affirmed, Administrative Review Board Final Decision and Order, October 28, 1996.

For purposes of Section 503, an individual is "qualified" if he is capable of performing a particular job, with reasonable accommodation. Id. at 28; affirmed, Administrative Review Board Final Decision and Order, October 28, 1996, at 9.

In determining whether an individual is "qualified" the relevant inquiry is whether he was capable of performing the job at the time the alleged discrimination occurred. Id. at 28; affirmed on other grounds, Administrative Review Board Final Decision and Order, October 28, 1996.

Complainant (a recovering alcoholic) was "qualified" for the job from which he was transferred because he performed the job satisfactorily for four years, he is not an active alcoholic, is at a low risk for relapse, and because contractor employed him in an identical job which he is clearly capable of performing. Id. at 28; affirmed, Administrative Review Board Final Decision and Order, October 28, 1996, at 9.

ALJ finds unpersuasive contractor's assertion that complainant (a recovering alcoholic) is not capable of performing a safety sensitive job because of the risk of injury; non-imminent risk of future injury does not render incapable an individual who is capable. Id. at 29; affirmed on other grounds, Administrative Review Board Final Decision and Order, October 28, 1996.

Assistant Secretary affirms ALJ's holding that complainant with a back impairment was "qualified" for the job at issue. OFCCP v. Yellow Freight System, Inc., 84-OFC-17, Assistant Secretary Final Decision and Order of Remand, July 27, 1993, slip op. at 15-16; Order Approving Settlement and Dismissal, April 29, 1994.

Actual ability to perform the job is the only test for determining if an individual is qualified. OFCCP v. Commonwealth Aluminum Corp., 82-OFC-6, Assistant Secretary for Employment Standards Final Decision and Order, February 10, 1994, at 9; remanded sub. nom., on other grounds Commonwealth Aluminum Corp., v. United States Department of Labor, No. 94-0071-0(c)(W.D. Ky. September 6, 1996).

In determining if a handicapped individual is qualified to do a job, the employer must gather all relevant information regarding work history and medical history. Id. at 9-10; remanded sub. nom., on other grounds Commonwealth Aluminum Corp., v. United States Department of Labor, No. 94-0071-0(c)(W.D. Ky. September 6, 1996).

Where a contractor applies physical or mental job qualification requirements which tend to screen out qualified handicapped individuals, the job requirements must be job related and consistent with business necessity and safe performance of the job. Id. at 11; remanded sub. nom., on other grounds Commonwealth Aluminum Corp., v. United States Department of Labor, No. 94-0071-0(c)(W.D. Ky. September 6, 1996).

Handicapped applicants or employees must be qualified, with reasonable accommodation, but a contractor must consider each handicapped individual as he finds him. Id. at 15; remanded sub. nom., on other grounds Commonwealth Aluminum Corp., v. United States Department of Labor, No. 94-0071-0(c)(W.D. Ky. September 6, 1996).

The test of whether a handicapped individual is qualified is if the individual possesses the ability to perform the job. Id. at 17; remanded sub. nom., on other grounds Commonwealth Aluminum Corp., v. United States Department of Labor, No. 94-0071-0(c)(W.D. Ky. September 6, 1996).

The Assistant Secretary held that the complainant was qualified to work in a position at Commonwealth which required manual labor, because she had experience performing manual labor tasks in a previous job. Ibid.

Although it required heavy manual labor, the Assistant Secretary found that the complainant was qualified to perform the mechanical maintenance job for which he applied at Commonwealth, because at the time of his application he had worked ten (10) years as a maintenance mechanic, and because an orthopedist recommended that he could continue working in that capacity. Id. at 18-19; remanded sub. nom., on other grounds Commonwealth Aluminum Corp., v. United States Department of Labor, No. 94-0071-0(c)(W.D. Ky. September 6, 1996).

The Assistant Secretary found that the complainant was qualified to work in mechanical maintenance having previously worked in the same position. Id. at 20; remanded sub. nom., on other grounds Commonwealth Aluminum Corp., v. United States Department of Labor, No. 94-0071-0(c)(W.D. Ky. September 6, 1996).

Complainant had worked in the supervision and maintenance of construction equipment from 1953 until the time of his application with Commonwealth, a period of approximately twenty-seven (27) years. Complainant was therefore qualified to work in electrical and mechanical maintenance at Commonwealth, . . . , and, inasmuch as his application was rejected because of his spondylolisthesis, OFCCP has established a prima facie case as to him. Id. at 21; remanded sub. nom., on other grounds Commonwealth Aluminum Corp., v. United States Department of Labor, No. 94-0071-0(c)(W.D. Ky. September 6, 1996).

An employer should not be allowed to shield itself in perpetuity from its obligations under Section 503 by arguing that past circumstances rendered the employee disqualified. Thus, upon request an employer is required to reconsider its employment decision after the passage of time when the employee's handicap is subject to change over time. OFCCP v. CSX Transportation, Inc., 88-OFC-24, Assistant Secretary for Employment Standards Decision and Order of Remand, October 13, 1994 at 20-21; case closed, January 17, 1996.

A "qualified handicapped individual" is a handicapped individual "who is capable of performing a particular job, with reasonable accommodation to his or her handicap." OFCCP v. Cissell Manufacturing Co., 87-OFC-26, Acting Assistant Secretary for Employment Standards Final Decision and Order, February 14, 1994, at 7; final decision vacated sub. nom., Cissell Manufacturing Co., v. U.S. Department of Labor, No. 94-0184 (W.D. Ky. May 24, 1994), appeal pending.

Complainant was a "qualified" individual with a disability because he had performed the job of field foremen successfully and safely for nearly five years prior to being transferred and continued to function as a field foreman at a new facility thereafter. He thus was qualified to perform the job without accommodation. OFCCP v. Exxon Corporation d/b/a/ Exxon Company, 92-OFC-4, Final Decision and Order, Administrative Review Board, October 28, 1996, at 9.