January 28, 2003

EQUAL OPPORTUNITY DIRECTIVE 2003-08

To:            Bureau Equal Opportunity Officers

From:        E. Melodee Stith, Director, Office for Equal Opportunity

Subject:     Individuals who are regarded as having a Disability

Last year, EEOC issued two significant decisions involving applicants for employment who were regarded as disabled. In these decisions, EEOC found the United States Postal Service failed to satisfy its burden that the applicants for employment posed a "direct threat" to the Agency, and, found the United States Postal Service to be in violation of the Rehabilitation Act.

These cases are: Daniel McManaway v. John E. Potter, Postmaster General, United States Postal Service, Appeal No. 01993233, Agency No. 4H-370-0071-98, and Luisito Asuncion v. John E. Potter, Postmaster General, United Postal Service, Appeal No. 01993435, Agency No. 1F-957-0063-98, both decided on August 27, 2002.

One applicant had applied for the position of Distribution Clerk, was selected for the position and sent for an agency medical examination and assessment. The applicant also had documented history of back pain. The physician who examined the applicant decided that based on his history of back pain and his resulting military service disability, the applicant would not be a good candidate for the Distribution Clerk position and would present an increased risk for recurrent back problems. The applicant filed an EEO complaint on the bases of race (white) and disability (back problems).

In the second case, an applicant had applied for the position of Cleaner/Custodian, was selected for the position and sent for an agency medical examination and assessment. The applicant also had documented history of coronary artery disease as well as other health-related problems. The physician who examined the applicant decided that based on his history of coronary artery disease, and his resulting military service disability, that employment as a Cleaner/Custodian would not be in the applicant's "best interest". The applicant filed an EEO complaint on the bases of disability when he was found medically unsuitable for the position.

In both cases, the applicants failed to satisfy the first prong of the definition under the Rehabilitation Act because the record did not support a finding that the applicant's medical histories substantially limited any of their major life activities.

However, the EEOC found that the U.S. Postal Service regarded both applicants as having an impairment which greatly limited the major life activity of working, because the Agency found both applicants "medically unsuitable" to carry out the duties of the jobs in question. The Agency found that based on the medical histories, the applicants posed a "direct threat" and were therefore "unsuitable for employment".

In order to exclude an individual on the basis of possible future injury, the Agency bears the burden of showing there is a significant risk, i.e., high probability of substantial harm. A speculative or remote risk is insufficient. The Agency must show more than that an individual stands some slightly increased risk of harm.

In both cases, The EEOC found that the Agency failed to meet its burden of showing a high probability of substantial harm. In Daniel McManaway v. John E. Potter, Postmaster General, United States Postal Service, the Agency's finding of unsuitability was not explained in any detail, nor did it address the duration of the risk posed by the applicant's history of back pain, the nature and severity of the potential harm, the likelihood that the potential harm would occur, or address the imminence of the potential harm.

In Luisito Asuncion v. John E. Potter, Postmaster General, United Postal Service, there was no evidence that the Agency considered the opinion of the applicant's own physician or any evidence regarding the applicant's work history since he was diagnosed with coronary artery disease in 1993.

Prior to issuing a possible finding of unsuitability for a position, the Agency must gather and base its decision on substantial information regarding the individual's work and medical histories. Further, the Agency must take into consideration an individualized assessment of the individual that takes into account: (1) the duration of the risk, (2) the nature and severity of the potential harm, (3) the likelihood that the potential harm will occur, and (4) the imminence of the potential harm.

You should use these cases as you advise your managers and HR professionals when attempting to take action involving employees who are or may be regarded as having a disability.

Inquiries:       Mercedes Flores, Chief of Staff, Office for Equal Opportunity, (202) 208-6120
Expiration:    When superseded