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

A decision to refuse to hire, to layoff, to terminate or to put on disability are actions that come under the purview of Section 503. OFCCP v. Western Electric Co., 80-OFCCP-29, ALJ Order Granting Defendant's Motion to Dismiss, March 4, 1981, slip op. at 5, rev'd and remanded on other grounds, Deputy Under Secretary for Employment Standards, April 24, 1985.

Complainant who was fired because he may have exposed the employer to the risk of higher premiums for workman's compensation insurance if he reinjured himself upon undertaking a more strenuous position was not discriminated against. OFCCP v. Shuford Mills, Inc., 80-OFCCP-30, ALJ Rec. Dec., May 26, 1981, slip op. at E-3, dismissal aff'd without opinion, Deputy Under Secretary for Employment Standards, September 17, 1985.

Affirmative action includes the obligation not to discriminate. OFCCP v. Southern Pacific Transportation Co., 79-OFC-10A, ALJ Rec. Dec., November 9, 1982, slip op. at 35, 60; remanded on other grounds, Acting Assistant Secretary for Employment Standards Decision and Order of Remand, February 24, 1994; Consent Order, October 13, 1995.

Although the Act does not expressly prohibit discrimination, the requirement of affirmative action is held to encompass the outlawing of discrimination against the handicapped. 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.

Under the Mt. Healthy dual motive test, contractor's decision to terminate epileptic employee for legitimate safety reasons is sufficient to justify her termination even if contractor's termination of employee on the grounds of alleged falsification of her application was pretextual. OFCCP v. Keebler Co., 87-OFC-20, ALJ Rec. Dec. and Order, March 4, 1991, slip op. at 19; remanded on other grounds, Assistant Secretary Decision and Order of Remand, December 21, 1994; ALJ Recommended Decision and Order, July 20, 1995; affirmed, Administrative Review Board Final Decision and Order, September 4, 1996; Motion for Reconsideration pending.

Contractor does not engage in "wholesale stereotyping" by automatically rejecting applicants with epilepsy, back conditions, hearing or vision impairments, or hypertension where contractor is able to show by competent medical evidence that all or substantially all such persons are unable to do the jobs in question without reasonable probability of future substantial harm to themselves or their co-workers. OFCCP v. Rowan Companies, Inc., 89-OFC-41, ALJ Rec. Dec. and Order, April 3, 1991, slip op. at 13-14, 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.

The Rehabilitation Act requires Federal contractors to take affirmative action in employing qualified handicapped individuals including a contractual pledge of non-discrimination. OFCCP v. Exide Corporation, 84-OFC-11, Acting Assistant Secretary for Employment Standards Dec. and Final Order, April 30, 1991, slip op. at 4, vacated on other grounds, Exide Corporation v. Martin, Civil Action No. 91-242, (E.D. Ky. 1992).

Contractor violated Section 503 by rejecting complainant's note from his doctor releasing him to return to work at "full strength," and by refusing to permit him to return to work without a note from his doctor releasing him to work on dangerous equipment. Id. at 9, vacated sub. nom., Exide Corporation v. Martin, Civil Action No. 91-242, (E.D. Ky. 1992), slip op. at 18.

Evidence showed that contractor's refusal to allow complainant to return to work after he presented a note from his doctor releasing him to return to work at "full strength" was made without inquiry as to complainant's actual medical condition and without investigation into what medical findings had been made during complainant's medical leave; decision was made solely on the basis of an uninformed comparison between complainant and a former employee who was required to obtain a particular type of release before returning to work. Thus, the manner in which contractor decided to refuse to allow complainant to return to work falls short of the case-by-case analysis required under the Rehabilitation Act. Id. at 12-13, vacated sub. nom., Exide Corporation v. Martin, Civil Action No. 91-242, (E.D. Ky. 1992), slip op. at 23-26.

A contractor's obligation to conduct the type of medical inquiry required by Section 503 is not dependent on whether the employee attempts to comply with the contractor's discriminatory job condition. Id. at 13, n.9, vacated on other grounds, Exide Corporation v. Martin, Civil Action No. 91-242, (E.D. Ky. 1992).

Because contractor violated Section 503 on the date it rejected complainant's note from his doctor releasing him for work at "full strength," it is irrelevant whether the contractor later terminated complainant officially for his failure to comply in a timely manner with contractor's unlawful request to obtain another release stating that complainant could work on dangerous equipment. Id. at 15, vacated sub. nom., Exide Corporation v. Martin, Civil Action No. 91-242, (E.D. Ky. 1992), slip op. at 36.

Based on the credibility of the witnesses, the evidence in the record compels the conclusion that complainant was dismissed for stating that he had used a substitute for his pre-employment medical examination and that he intended to injure himself on-the-job in order to collect a large settlement from his employer; these reasons were sufficient grounds for dismissal; and these reasons were not pretextual. OFCCP v. Norfolk and Western Railway Co., 90-OFC-8, ALJ Rec. Dec. and Order, July 9, 1991, slip op. at 20, stipulated dismissal, September 30, 1991.

Even if complainant's eye condition was a factor in his dismissal, contractor met its burden of showing that it would have dismissed him solely for stating that he had used a substitute for his pre-employment medical examination, stating that he intended to injure himself on-the-job in order to collect a large settlement from his employer and for failing to attend a meeting with his supervisor about the alleged statements. Id. at 21.

ALJ rejects OFCCP's contention that contractor's use of a medical classification system which screens out individuals with certain medical conditions is, by itself, a violation of Section 503; the rejection of a job applicant on the basis of a medical condition may or may not result in a violation and such violation may be established only on an individualized basis. 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 4-5; Consent Decree, June 2, 1993.

In order to make out a prima facie case of discrimination under Section 503, OFCCP must show that (1) an individual with handicaps, (2) who was "qualified," (3) for a job covered by the Act, (4) was denied an employment opportunity or advantage, (5) on the basis of his handicap. Id. at 5; Consent Decree, June 2, 1993.

OFCCP's theory of the case (i.e., that contractor's medical classification system resulted in legal injury to the class of individuals who, based on their medical conditions, were classified according to the system) is inconsistent with case-law interpreting Section 503 because the existence of the medical classification system does not establish class members' handicap status or their qualifications for jobs; determinations of handicap status and job qualifications cannot be made in the abstract. Id. at 6-7; Consent Decree, June 2, 1993.

A requirement of nondiscrimination is included in the affirmative action clause. OFCCP v. Norfolk and Western Railway Co., 80-OFCCP-14, Special Assistant to the Assistant Secretary for Employment Standards Dec. and Order, November 19, 1991, slip op. at 5, n.4.

Where contractor discharged complainant for falsification of his medical history, the same decision rule requires contractor to demonstrate that, even if complainant had falsified something other than his medical history, the contractor still would have terminated his employment. Id. at 5-6.

Contractor met its burden of demonstrating that it would have discharged employee who falsified his medical history on his employment application even if employee had not been handicapped, where evidence showed that 1) supervisor made the decision to terminate employee for falsification before learning of the company physician's opinion that employee's prior ankle injury "would lead to nothing but trouble in the future;" 2) a union claim for reinstatement of employee was denied because of the employee's falsification; 3) contractor had an established policy of automatic dismissal for employee falsification of job applications and medical forms and enforced the policy against other employees; and 4) honesty was an essential quality for the position in issue. Id. at 6-11.

Evidence that contractor would not have hired complainant had it known of his prior ankle injury established that complainant's handicap was a motivating factor in the decision to discharge him. However, that evidence does not overcome evidence that, even if he had not been handicapped, contractor would have discharged him for falsifying his employment application and medical forms. Id. at 15.

When a case has been fully tried on the merits, the task of the fact finder is to decide whether the defendant intentionally discriminated against the employee or, in other words, which party's explanation of the employer's motivation it believes. 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 8-9.

Because OFCCP failed to show that complainant sought to return to her former position after her disability leave or that contractor rejected her for that job, OFCCP failed to establish a prima facie case of handicap discrimination. Ibid.

Assuming that plaintiff did establish a prima facie case, the facts show, at most, that there was a serious misunderstanding between the complainant and the contractor about how to meet the heavy lifting duties of the job; plaintiff has not proven by a preponderance of the evidence that the contractor discriminated against complainant because of her handicap. Ibid.

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. Id. at 11.

OFCCP failed to show that contractor's asserted reason for terminating complainant -- that she lied in order to obtain additional disability benefits from the company -- was pretextual, in light of testimony from three officials of the company who testified that the termination decision was made prior to the time the company became aware of complainants inability to engage in heavy lifting. Id. at 12-14.

If contractor terminated complainant in good faith belief that she acted dishonestly in obtaining disability benefits, contractor does not violate Section 503. Id. at 14.

To establish a prima facie case of discriminatory discharge, plaintiff need only show that he was discharged under circumstances which give rise to unlawful discrimination. OFCCP v. American Commercial Barge Line Co., 84-OFC-13, Special Assistant to the Assistant Secretary for Employment Standards Final Dec. and Order, April 15, 1992, slip op. at 9.

Plaintiff bears the ultimate burden of persuading the court that the defendant intentionally discriminated against him. Ibid.

In analyzing a discriminatory discharge case, the proper focus of inquiry is the contractor's motivation at the time of the termination decision. Id. at 10.

The ALJ erred in concluding that manic depressive employee was discharged because he created a risk of liability under the contractor's view of maritime law; employee was discharged because he failed to provide medical records necessary for contractor to determine whether he created risk of liability. Id. at 11-12.

Contractor met its burden of demonstrating that manic depressive employee's termination was for a non-discriminatory reason, i.e., his failure to release to his employer his psychiatric records held by the VA hospital. Id. at 14.

OFCCP failed to show that manic depressive employee actually and seriously re-applied for an available position after he was terminated. Thus, the fact that the contractor did not re- employ him even after he released his medical records did not establish that the stated reason for discharge (failure to release medical records) was a pretext for discrimination. Id. at 15-16.

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. OFCCP v. Cissell Manufacturing Co., 87-OFC-26, ALJ Rec. Dec. and Order, May 22, 1992, slip op. 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.

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.

Regardless of his actual medical condition, complainant's claim that he was epileptic created a legal duty under the Occupational Safety and Health Act, 29 U.S.C. §651, 652, and 654, for contractor to maintain a place of employment free from recognized hazards by ensuring that complainant was medically capable of returning to the work force without posing a danger to himself or others. Thus, contractor did not violate Section 503 by requesting that employee who claimed to be epileptic produce a release from his doctor stating that he could work on dangerous equipment and under dangerous conditions. Exide Corporation v. Martin, Civil Action No. 91-242, (E.D. Ky. 1992), slip. op. at 19.

Under the legal theory of "negligent retention," an employer can be held liable for an act of harm caused by an employee to fellow workers where the company was previously on notice of the employee's propensity to cause the harm in question. Under this legal theory, once contractor was put on notice of complainant's claimed epileptic seizures, contractor had a duty to ensure that complainant could safely return to work to the admitted hazardous conditions in the plant without posing a safety danger to his fellow workers. Thus, contractor did not violate Section 503 by requesting that employee who claimed to be epileptic produce a release from his doctor stating that he could work on dangerous equipment and under dangerous conditions. Ibid.

A contractor may impose "qualification requirements" on employees even if they tend to "screen out" qualified handicapped individuals, provided that the requirements are job related, consistent with business necessity and the safe performance of the job. Thus, contractor did not violate Section 503 by requesting that employee who claimed to be epileptic produce a release from his doctor stating that he could work on dangerous equipment and under dangerous conditions; contractor had a legal right to demand that complainant meet requirements such as obtaining the release to ensure that he could safely return to the admitted hazardous conditions in the plant. Id. at 19-20.

Under Mantolete v. Bolger, 767 F.2d 1416 (9th Cir. 1985), the only critical issue is that an inquiry concerning the employee's ability to perform the job be made before any final decision is rendered to absolutely deny employment or reinstatement to a qualified handicapped individual. Thus, contractor's request that complainant who claimed he was epileptic produce a note from his doctor releasing him to work on dangerous equipment and in dangerous conditions was not unlawful because the request was made in order for contractor to make its decision concerning complainant's reinstatement; i.e., whether complainant could safely perform the work in the admittedly dangerous environment of the contractor's plant. Id. at 23-26.

Even assuming that contractor violated Section 503 by requesting that complainant who claimed he was epileptic produce a note from his doctor releasing him to work on dangerous equipment and in dangerous conditions, complainant is not entitled to reinstatement because contractor later lawfully discharged complainant for violating company rule prohibiting unauthorized absences in excess of three days. Id. at 36.

Because the regulations require contractors to take affirmative action to employ and advance in employment qualified handicapped individuals and requires actual recruitment of handicapped individuals, it is clear that Section 503 requires much more than non-discrimination. OFCCP v. Exxon Corporation, 92-OFC-4, ALJ Rec. Dec. and Order, June 15, 1993, slip op. at 22; affirmed on other grounds, Administrative Review Board Final Decision and Order, October 28, 1996.

Contractor failed to establish that its blanket exclusion of recovering alcoholics and people with a history of drug abuse from designated positions is consistent with business necessity and the safe performance of the job. Id. at 32-38; affirmed, Administrative Review Board Final Decision and Order, October 28, 1996, at 11.

Contractor (Exxon) failed to establish that the consequences of the Valdez accident (the criminal charges brought against the company, the negative public perception of the company, and the public's perception that the accident was caused by a recovering alcoholic) justified its blanket exclusion of all recovering alcoholics from safety sensitive positions. Id. at 33-34; affirmed, Administrative Review Board Final Decision and Order, October 28, 1996, at 11,23.

Contractor failed to establish that its former drug and alcohol policy, which did not automatically exclude recovering alcoholics from safety sensitive positions, was insufficient to prevent risk of injury in those jobs. In the absence of evidence that the former policy was ineffective, contractor's across-the-board exclusion of recovering alcoholics from safety sensitive jobs cannot be found to be reasonable, or consistent with business necessity and safe performance of the job. Id. at 35; affirmed on other grounds, Administrative Review Board Final Decision and Order, October 28, 1996.

By applying to the complainant its blanket exclusion of recovering alcoholics from certain designated positions, contractor failed to perform an individualized assessment of whether complainant would pose a reasonable probability of substantial harm. Id. at 36; affirmed, Administrative Review Board Final Decision and Order, October 28, 1996, at 14.

ALJ finds that contractor's decision to transfer complainant to a non-safety sensitive job, based on its policy of excluding all recovering alcoholics from such jobs was unlawful and violated Section 503. Because the policy does not differentiate between those who have been successful in rehabilitating themselves and those who have not, the policy runs afoul of Section 503's mandate of affirmative action and non-discrimination. Id. at 43-44; affirmed, Administrative Review Board Final Decision and Order, October 28, 1996, at 23.

Contractor's reliance on complainant's back x-rays in determining whether he posed a reasonable probability of substantial harm constitutes a violation of Section 503 as applied to complainant in particular and as it was used as a part of the contractor's general employment process. OFCCP v. Yellow Freight System, Inc., 84-OFC-17, Assistant Secretary Final Decision and Order of Remand, July 27, 1993, slip op. at 14; remanded on other grounds, Acting Assistant Secretary Reconsideration of Final Decision and Order of Remand, December 22, 1993; Order Approving Settlement and Dismissal, April 20, 1994.

Contractor's decision to terminate complainant, which was based solely on a review of his back x-rays, violated Section 503 because contractor failed to gather all relevant information and assess both the probability and severity of potential injury in a meaningful and comprehensive manner. Id. at 14; remanded on other grounds, Acting Assistant Secretary Reconsideration of Final Decision and Order of Remand, December 22, 1993; Order Approving Settlement and Dismissal, April 20, 1994.

Because complainant was a "qualified handicapped individual" his termination could only be justified if it was predicated upon a valid screening process for determining possible future injury consistent with the exclusionary standard enunciated in Mantolete v. Bolger, 767 F.2d 1416 (9th Cir. 1985). Contractor's screening process did not comport with the standards enunciated in that case and are therefore invalid. Thus, complainant is entitled to a remedy and remand to the ALJ to consider remedy is appropriate. Id. at 16; remanded on other grounds, Acting Assistant Secretary Reconsideration of Final Decision and Order of Remand, December 22, 1993; Order Approving Settlement and Dismissal, April 20, 1994.

Contractor's employment screening process violated Section 503 in that contractor relied solely on back x-rays to determine whether employees posed a reasonable probability of substantial harm. Therefore, Assistant Secretary orders contractor to develop and implement policies and procedures regarding back conditions including the use of x-ray examinations therein, which are consistent with Section 503. Id. at 16-17; remanded on other grounds, Acting Assistant Secretary Reconsideration of Final Decision and Order of Remand, December 22, 1993; Order Approving Settlement and Dismissal, April 20, 1994.

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.

The Assistant Secretary rejected Commonwealth's contention that it excluded the complainant, who had a correctable hearing loss, for business necessity and safety reasons, because Commonwealth simultaneously employed two other individuals with uncorrectable hearing losses. Inasmuch as there was no apparent reason for differentiating correctable and uncorrectable hearing loss with regard to job relatedness or safety concerns, the Assistant Secretary held that Commonwealth violated Section 503 when it refused to hire the complainant unless he had his hearing surgically corrected. OFCCP v. Commonwealth Aluminum, 82-OFC-6, Acting Assistant Secretary for Employment Standards Final Decision and Order, February 10, 1994, at 16; remanded sub. nom., Commonwealth Aluminum Corp. v. United States Department of Labor, No. 94-0071-0(c) (W.D. Ky. September 6, 1996).

OFCCP established a prima facie case of handicap discrimination by proving that Commonwealth violated Section 503 by refusing to hire the complainant because she had "asymptomatic idiopathic scoliosis" which did not limit her activities. Id. at 18; remanded sub. nom., 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 perform the job for which he applied at Commonwealth and he was rejected for employment based on his scoliosis, hence OFCCP made a prima facie case of handicap discrimination as to him. Id. at 19; remanded sub. nom., Commonwealth Aluminum Corp. v. United States Department of Labor, No. 94-0071-0(c) (W.D. Ky. September 6, 1996).

The evidence as to the complainant does not support refusing him employment because all it states is that he should avoid heavy lifting, and it does not establish a probability of substantial harm or predict if any injury will occur. Therefore, Commonwealth violated Section 503 by refusing to hire him. Ibid.

Individual was qualified to work in mechanical maintenance having previously worked in the same position. Because he was rejected by Commonwealth due to degenerative changes in his lumbar spine, OFCCP made a prima facie case of handicap discrimination. Id. at 20; remanded sub. nom., Commonwealth Aluminum Corp. v. United States Department of Labor, No. 94-0071-0(c) (W.D. Ky. September 6, 1996).

A mistaken but good faith belief that an individual was not qualified is not a defense to discrimination, as the Act is directed at unintentional conduct. Ibid.

Complainant, a qualified handicapped individual, was rejected for employment because of his spondylolisthesis. Therefore, OFCCP has established a prima facie case of discrimination. Id. at 21; remanded sub. nom., Commonwealth Aluminum Corp. v. United States Department of Labor, No. 94-0071-0(c) (W.D. Ky. September 6, 1996).

As a simple matter of logic, the concept of "affirmative action" must include a duty not to discriminate against members of the class protected by Section 503. Nondiscrimination is the starting point, the first step required of any contractor, in fulfilling its affirmative action obligation. If a contractor were free to discriminate against employees and applicants for employment on the grounds that they are disabled and without regard to their ability to perform the job, the contractor could avoid any responsibility for affirmative action. OFCCP v. American Airlines, Inc., 94-OFC-9, Assistant Secretary For Employment Standards Decision and Remand Order, April 26, 1996, at 5.

The starting point for interpretation of any legislation is the words of the statute itself. But the term "affirmative action" is not defined in the Rehabilitation Act. If it has any "plain meaning" at all that does not reduce it to an absurdity, it must clearly prohibit discrimination. Id. at 6.

The Assistant Secretary held that cases holding that a private right of action cannot be implied from Section 503 do not lead to the conclusion that Section 503 does not prohibit discrimination against the disabled. To the contrary, many of these cases rely in part on the existence of administrative remedies as a basis for concluding that a private right of action in court may not be inferred. Id. at 13.

Even if the meaning of the term "affirmative action" is unclear, there can be no question that the Secretary's interpretation of it in the Section 503 regulations as prohibiting discrimination and requiring all covered contracts to include a clause [Affirmative Action Clause] so committing the contractor is reasonable. Id. at 15.

The Assistant Secretary held, that because Section 503 obligates covered contractors not to discriminate against qualified disabled individuals, that obligation would be meaningless if contractors could violate it and not provide relief to victims of their illegal discrimination. Id. at 16.

Section 503 parallels Executive Order 11246 with respect to the agency's authority to order payment of back wages to make victims of discrimination whole. Id. at 16.

One of the general purposes of the Act is to insure that any qualified handicapped individual shall be given full and fair consideration for employment by any contractor who seeks to contract with the Federal government. Therefore, OFCCP's interpretation of Section 503's affirmative action obligation as including a nondiscrimination component is reasonably within the contemplation of the statutory grant of authority. OFCCP v. American Airlines, Inc., 94-OFC-9, ALJ Dec. and Order on Defendant's Motions for Summary Judgment, September 19, 1995, at 4; rev'd on other grounds, Assistant Secretary of Labor, Decision and Remand Order, April 19, 1996.

"Constructive" discharge assumes that the employee was not formally discharged, the issue being whether he was forced to resign or whether he quit voluntarily. A finding of constructive discharge requires proving that working conditions were rendered so difficult, unpleasant, unattractive, or unsafe that a reasonable person would have felt compelled to resign, i.e., that the resignation was involuntary. OFCCP v. Mt. Bell Telephone Co., 87-OFC-25, Assistant Secretary for Employment Standards, Order Denying Motion to Strike; Decision and Order of Remand, August 25, 1994, at 6; Consent Decree, February 9, 1995.

In order for individuals to recover under section 503 of the Rehabilitation Act, they must meet two different criteria which initially may appear contradictory. They must show first, that they are an individual with a disability and second, that despite their disability they can perform the particular duties required for the job. OFCCP v. Exxon Corporation d/b/a/ Exxon Company, 92-OFC-4, Final Decision and Order, Administrative Review Board, October 28, 1996, at 4.

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." Id. 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.