"EEOC Certifies Class in Disability Bias Case Challenging Foreign Service Availability Rule"

The Bureau of National Affairs, June 18, 2014

The State Department must face class allegations that its rule requiring Foreign Service applicants to be available to work worldwide, including in locations with limited medical facilities, discriminates on the basis of disability, the Equal Employment Opportunity Commission ruled June 6 (Meyer v. Kerry, EEOC, No. 0720110007, 6/6/14).

The EEOC found that class agent Doering Meyer presented sufficient evidence that the State Department's "worldwide availability" rule harmed a class of more than 50 qualified individuals with disabilities who applied for Foreign Service positions with the department and other federal agencies, but whose bid for employment was denied or delayed based on their disability.

The evidence also shows that the worldwide availability policy, under which Foreign Service applicants aren't cleared medically unless they are fit enough to work in any of the 267 Foreign Service posts throughout the world, may have a disparate impact against individuals with a disability in violation of the Rehabilitation Act, the commission ruled.

The decision, which was signed by Acting Executive Officer of the Executive Secretariat Bernadette B. Wilson, reversed the State Department's final agency action in the case. The department had rejected an EEOC administrative judge's order granting class status.

The commission agreed, however, to redefine the class to account for class members, like Meyer, whose employment was only delayed--not denied--because they were able to obtain a waiver from the worldwide availability rule from their hiring agency.

Class Agent Has MS in Remission.

The worldwide availability policy applies to all applicants seeking Foreign Service jobs with the State Department, the Commerce Department, the Agriculture Department, the U.S. Agency for International Development and the Broadcasting Board of Governors.

Under the policy, all Foreign Service applicants are required to undergo suitability determinations, testing, and security and medical clearances. The State Department's Office of Medical Services is tasked with the medical exam and clearance portion of the process.

Pursuant to its interpretation of the Foreign Service Act, the department requires that applicants must be able to serve around the world, including in some posts lacking quality medical service. Applicants who are denied medical clearance may seek a waiver directly from the hiring agency itself, and each agency has its own waiver program.

Meyer applied for the Foreign Service at the age of 46 and received a conditional offer. She was denied medical clearance, however, because she has multiple sclerosis, even though her condition had been in remission for years.

She contacted an EEO counselor and later filed a formal complaint. She also sought a medical waiver, which was granted.

Meyer was assigned to a post in July 2008. A month later, she sought to convert her individual complaint into a class complaint.

She asserted that the department's worldwide availability policy disparately impacts and disparately treats individuals with disabilities, including by denying them the individual assessment of their condition required by the Rehabilitation Act. She also asserted a class claim under the Age Discrimination in Employment Act.

Variety of Disabilities No Bar to Class Treatment.

In ordering class certification of the Rehabilitation Act claims, the EEOC found that Meyer's proposed class satisfied the commonality and typicality requirements of the agency's regulations governing federal sector employees (29 CFR § 1614.204).

Meyer raised fact questions as to whether qualified individuals with disabilities such as herself were denied medical clearance without regard to whether they might be reasonably accommodated and without the State Department conducting the necessary individualized assessment of their condition, the EEOC said.

There also is a factual dispute on whether the worldwide availability policy results in a disproportionate number of medical clearance denials for disabled Foreign Service applicants, the commission found.

It said typicality was established because Meyer's claims were sufficiently connected to the claims of the other class members--even though they have a variety of disabilities, including MS, diabetes and HIV--given the evidence of an overriding policy.

Commonality and typicality weren't defeated by changes the department made to that policy in 2009 and 2010, the commission added, because the AJ may adjust the class or certify subclasses as the case warrants.

The EEOC upheld the AJ's denial of class certification on the ADEA claim, finding insufficient evidence that the department's worldwide availability policy discriminates based on age.

Bryan Schwartz in San Francisco and Passman & Kaplan in Washington represented the class. The department's office of legal advisor and office of civil rights represented the department.