EEOC Informal Discussion Letter

EEOC Office of Legal Counsel staff members wrote the following informal discussion letter in response to an inquiry from a member of the public. This letter is intended to provide an informal discussion of the noted issue and does not constitute an official opinion of the Commission.

Rehabilitation Act: Qualification Standards

September 4, 2015

XXXXXXX
XXXXXXX

Dear XXXXXXX:

This letter responds to an email of July 26, 2015 that you sent to the U.S. Equal Employment Opportunity Commission (EEOC or Commission) seeking guidance on whether certain practices used by the Transportation Security Administration (TSA or Agency) violate the Americans with Disabilities Act (ADA), and whether TSA itself is required to comply with the ADA.  The ADA, which prohibits employment discrimination on the basis of disability by private and state and local government employers with fifteen or more employees, does not cover the executive branch of the Federal Government.  However, section 501 of the Rehabilitation Act, as amended, 29 U.S.C. §791, prohibits federal agencies from discriminating against applicants or employees on the basis of a disability, and adopts the standards set forth in title I of the ADA.[1]    

We are unable to comment on the lawfulness of the specific practices described in your email because complaints raising these issues may come before the Commission, and a finding of discrimination can only be made following a full investigation of a complaint.  However, below we discuss the Commission's position on whether TSA is generally required to comply with the Rehabilitation Act. 

Background

You indicate that you represent a union whose members are employed by the United States Department of Homeland Security, Transportation Security Administration (TSA).  Members of the union, who are employed as TSA officers, have informed you that the Agency requires employees taking leave pursuant to the Family and Medical Leave Act to provide the Human Resources department with medical information detailing any medications prescribed and health conditions that have developed within the last six months. You state that employees are then subject to termination as a result of the medical information disclosed regardless of whether they have been treated or are managing conditions to enable them to perform their jobs. You have contacted TSA and state that TSA informed you that the Agency is not required to comply with the ADA and that there is no jurisdiction over TSA to claim a violation of the ADA.

Relationship between the Rehabilitation Act and the Aviation and Transportation Security Act

The EEOC enforces federal laws that prohibit employment discrimination, including Title I of the ADA and section 501 of the Rehabilitation Act of 1973.  In 2001, Congress enacted the Aviation and Transportation Security Act (ATSA) to foster national security and ensure the protection of transportation systems throughout the country.[2]  In doing so, Congress created TSA and granted the Under Secretary of the Agency the authority to develop hiring qualification standards for security screening personnel "[n]otwithstanding any provision of law," thus giving TSA the authority to impose qualifications that might not otherwise be permissible under the Rehabilitation Act.[3]

The Commission's long-standing position is that the ATSA does not totally divest it of jurisdiction to hear complaints brought by security screeners against TSA under the Rehabilitation Act and other EEOC-enforced statutes.[4]  The Commission has held that "[w]hether a complaint by a security screener states a claim under the Rehabilitation Act must be determined on a case-by-case basis, in light of the specific allegations made, and will depend on whether there is any conflict between the ATSA-mandated qualification standards and the complainant's Rehabilitation Act claim."[5]  TSA must comply with the requirements of the Rehabilitation Act where there is no conflict between the ATSA-mandated qualification standards and the requirements of the Rehabilitation Act.[6]  However, when the two statutes conflict, the requirements of the ATSA will supersede the protections of the Rehabilitation Act.[7]  

For example, where a complainant's ability to meet a specific ATSA-mandated hiring qualification standard because of a disability is at issue, the qualification standard cannot be successfully challenged because there is an irreconcilable conflict between the requirements of the ATSA and the Rehabilitation Act.[8]  The ATSA will supersede the Rehabilitation Act, and therefore, TSA is not required to prove that the standard is job-related and consistent with a business necessity, which would otherwise be required under the Rehabilitation Act.[9]

On the other hand, where there is no conflict between the two statutes, the ATSA does not supersede the Rehabilitation Act.  For example, where TSA medically disqualified an applicant for a security screener position due to her use of immunosuppressant medications, the Commission, after finding that neither the ATSA qualification standards nor the Agency's Medical Guidelines addressed the Complainant's condition and medication use, concluded that there was no conflict between the ATSA and the Rehabilitation Act.  Accordingly, the Commission concluded that the ATSA did not pre-empt the Rehabilitation Act and held that the Agency discriminated against the Complainant due to her disability.[10]

Finally, where the complainant does not challenge an ATSA-mandated hiring qualification standard, but rather, challenges another TSA practice that he or she believes has amounted to discrimination on the basis of a disability, the ATSA standards and the Rehabilitation Act do not conflict.  For example, where a Complainant alleged that she was a qualified individual with a disability who could have participated in the application process if provided a reasonable accommodation, the Commission found that the Complainant adequately stated a claim because she did not challenge an ATSA-mandated standard.[11]

We hope that this information is helpful.  This letter is an informal discussion of the issues you raised and should not be considered an official opinion of the EEOC.  If you have further questions, please contact me at 202.663.4665, or Attorney Advisor Ashley Martin, at (202) 663-4695.

Sincerely,

Christopher J. Kuczynski Acting Associate Legal Counsel

[1] 29 U.S.C. § 791(g) (applying ADA standards to the Rehabilitation Act).

[2] See 49 U.S.C. § 44935.

[3] 49 U.S.C. § 44935(f).

[4] Getzlow v. Dep't of Homeland Sec., EEOC Appeal No. 0120053286 (June 26, 2007).   Some courts have held that the ATSA preempts entirely the application of the Rehabilitation Act to employment decisions relating to transportation security screeners. See, e.g. Field v. Napolitano, 663 F.3d 505, 509 (1st Cir. 2011) (holding that the plain language of the ATSA precludes a security screener from bringing suit under the Rehabilitation Act); see also Joren v. Napolitano, 633 F.3d 1144, 1146 (7th Cir. 2011) and Castro v. Sec'y of Homeland Sec. 472 F.3d 1334, 1337 (11th Cir. 2006).

[5] Getzlow, EEOC Appeal No. 0120053286.

[6] Id.

[7] Id.

[8] Getzlow, EEOC Appeal No. 0120053286; see Complainant v. Dep't of Homeland Sec., EEOC Appeal No. 0120133101 (June 10, 2015) (complainant whose renal dysfunction prevented him from meeting the ATSA-mandated standards did not establish a violation of the Rehabilitation Act); see also Myles v. Dep't of Homeland Sec., EEOC Appeal No. 0120092707 (Sept. 13, 2011) (complainant whose end stage renal disease prevented him from meeting the ATSA-mandated standards did not establish a violation of the Rehabilitation Act).

[9] See Getzlow, EEOC Appeal No. 0120053286.

[10] Complainant v. Dep't of Homeland Sec., EEOC Appeal Nos. 0720130017, 0120131861 (June 30, 2015).

[11] See Getzlow, EEOC Appeal No. 0120053286; see also Chapman v. Dep't. of Homeland Sec., EEOC Appeal No. 0120051049 (Aug. 6, 2008), Roop v. Dep't of Homeland Sec., EEOC Appeal No. 0720090056 (Oct. 21, 2010), and Shorter v. Dep't of Homeland Sec., EEOC Appeal No. 0120072237 (Sept. 5, 2007).

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