August 1997

Handicap Discrimination Rules

The MSPB issued a lengthy decision in Clark v. U.S. Postal Service, 74 MSPR 552 (1997) clarifying its approach to handicap discrimination cases. The Board set forth a number of important rules on who has to prove what in these cases. The Board said that if a disabled employee needs accommodations he must show that with the accommodations he would be able to perform the job. Once this showing is made, the burden of proof falls on the employer to demonstrate that the accommodations would create an undue hardship on its budget or operations. The Board also emphasized that disabled employees and employers are expected to work together in good faith to identify and implement accommodations before any action is taken against an employee. As to reassignment, the Board said that reassignment should be considered only where the disabled employee cannot be accommodated in his current position and that it is the burden of the agency, not the employee, to explore whether there are vacant positions available which the employee could perform.

Liability for Sexual Harassment

In Harrison v. Eddy Potash, Inc., 112 F. 3d 1437 (10th Cir. 1997) the court dealt with the question of whether an employer could be liable for sexual harassment by a low level supervisor. Some courts have excused employers from liability for the actions of such individuals on the theory that sexual harassment was prohibited by the employer and there could be no liability until the employee made a complaint to higher level officials. The court in Harrison, however, found that the employer would be liable for sexual harassment by a low level supervisor if the supervisor used his actual or apparent authority over the employee to carry out the harassment. The court explained that it was not enough that the company assigned the supervisor to work in an area near the victim; the company would have to give the supervisor actual control over the victim's working conditions for liability to attach.

Watch This Case

We were surprised to see that the Supreme Court has agreed to decide an appeal filed by the administration from the Federal Circuit's decision in King v. Erickson. The Federal Circuit ruled, in agreement with MSPB, that an employee is entitled to deny a charge of misconduct without the denial forming the basis for an accusation of falsification. The Supreme Court appears to have some questions about this ruling, so we will have to watch the case carefully to see what happens on appeal.

Other New Cases

The D.C. Circuit has upheld the legality of a questionnaire distributed to certain federal employees in sensitive positions asking them about illegal drug use and financial background. A lower court had ruled that the questions violated the employee's right to privacy but the D.C. Circuit disagreed, saying that the Government had a legitimate interest in the information and that there were sufficient safeguards in place to protect employee confidentiality. AFGE v. Dept. of Housing and Urban Development, 13 IER Cases I (D.C. Cir. 1997) . . . The FLRA issued a strange decision in IRS, Tulsa, Oklahoma, 52 FLRA No. 135 (1997) rejecting an appeal by a union that claimed an employee was prevented from raising a defense in arbitration over a 3day suspension. The Authority said that there is no Constitutional due process right to any post suspension proceedings for non-adverse actions, so the arbitrator was free to hold the proceedings as he saw fit. . . The Authority reaffirmed in AAFES, Dallas, Texas, 53 FLRA No. 5 (1997) that representational duties on official time do not amount to the assignment of work under the management rights statute, 5 USC 7106. An agency appealed an arbitration award regarding the work schedule of a union official but the Authority rejected the contention that by requiring the agency to modify the employee's work schedule to accommodate his representational needs the arbitrator interfered with its right to assign work.