Thursday, October 21, 2010

EEOC certifies class action against State Dept on behalf of disabled Foreign Service applicants

WaPo's Joe Davidson has a recent piece asking "Should medical conditions prevent State Department applicants from joining the Foreign Service if they can't serve in every single post in the world?" (For a Foreign Service officer with MS, what is 'around the world'? | WaPo | Tuesday, October 19, 2010; 10:29 PM):

Doering Meyer is functional in Turkish, speaks some Arabic and has lived abroad, where she bolstered a strong interest in Islam and foreign affairs.

Despite that background, when she applied to be a Foreign Service officer, State said no because she has a history of multiple sclerosis. Meyer was able to secure a waiver that allows her to work in some places.

Waiver or not, Meyer says she thinks State's practice results in an unfair bias against people with certain ailments and violates federal anti-discrimination laws that require employers to make reasonable accommodations for people with disabilities. That word alone exaggerates Meyer's condition.

"The impact of the State Department's failure to provide the required individualized consideration is profound," said Bryan J. Schwartz, her Oakland, Calif., lawyer. "The State Department, virtually, without exception, does not hire FSOs with disabilities, records of disabilities and perceived disabilities."
The State Department said it does hire people with disabilities into the Foreign Service and "has been doing so for years. In addition, the Department provides reasonable accommodations. When persons can serve worldwide with reasonable accommodation, they are eligible to be hired into the Foreign Service."

For Meyer, her MS is more of a label than a reality. She said that she has had no symptoms for about 10 years and that her doctor gave her the green light to live abroad.

"I do not, at this point, see any reason why the patient could not work overseas," Craig L. Hyser, a Saint Paul, Minn., neurologist wrote in a 2006 letter. "She has had a benign course of multiple sclerosis to date and does not have any significant disability."

But that benign course was enough to block her application. With Schwartz's help, Meyer was able to secure a waiver that allowed her to join the Foreign Service. The waiver, however, grants her a more restrictive Class 2 designation rather than a Class 1, which would allow her to be posted anywhere in the world.

In papers filed with the Equal Employment Opportunity Commission, the department said Foreign Service officers must be available to serve everywhere. Against State's wishes, the EEOC certified the case as a class action this month.

"The Agency has 267 diplomatic posts around the world," State said in documents supplied by Schwartz. "Many of those posts lack U.S. quality medical resources and facilities. . . . Statutes mandate that Foreign Service personnel must be able to serve around the world."
"What the State Department did was to discriminate against her based on her record of MS and their perceptions of her disability by making certain assumptions about her condition and then, based on those assumptions, ruling out certain State Department posts," Schwartz said. "For example, even in a place that is humid, and even assuming Ms. Meyer was sensitive to humidity, she could likely be accommodated with air conditioning - but the State Department did not factor this into their decision."

The important question, Schwartz said, is "why should Ms. Meyer be rejected from employment altogether just because there were certain posts which would not be a good fit for her? Under the Rehabilitation Act, people with disabilities are required to be given individualized consideration, which, in this case, required the State Department to look at particular posts where they wish to station Ms. Meyer and decide whether she could be stationed there, with or without a reasonable accommodation."

Read the whole thing here.

Active links added above.  This case is not going away soon.  The EEOC certified the case as a class action this month in late September. See below:

"Meyer, et al. v. Clinton (Department of State)
, The United States Equal Employment Opportunity Commission (EEOC) has certified a class action brought on behalf of all disabled Foreign Service applicants against the U.S. State Department by San Francisco Bay Area attorney Bryan Schwartz. The Class Agent in the matter, Doering Meyer, is a woman with multiple sclerosis (MS) who qualified for a Foreign Service Officer position after a rigorous screening process – only to be denied employment because her multiple sclerosis automatically disqualified her, under the State Department guidelines challenged in the suit."

The decision defined the class as:
"All applicants for career Foreign Service employment with a disability who have been or will be denied employment from October 7, 2006 untilt he present because the State Department's Office of Medical Services denied them "Class 1 - Unlimited Clearance for Worldwide Assignment" type clearance."
The September 30, 2010 certification decision by Administrative Judge, Mary Elizabeth Palmer is here.

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