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Federal Employees News Digest : Nov. 26, 2012
Phil Piemonte, Managing Editor E-mail: email@example.com What's Inside44 November 26, 2012 • vol. 62, No. 20 Details are key to discrimination claims This week, FEND's Nathan Abse interviews Kirby Smith, a discrimination lawyer for the Vaughn Law Firm in the Atlanta area.. Smith represents federal employees, pursuing their cases before the Equal Employment Opportunity Commission (EEOC), Merit System Protection Board (MSPB), the Office of Special Counsel (OSC) and other federal venues. More than 15,700 federal employees filed nearly 17,000 discrimina- tion complaints in fiscal 2011 to the EEOC, which handles the lion's share of such cases. Q&A with Kirby Smith, federal employee discrimination attorney What are some of the more typical types of federal employees' discrimination claims that you and your colleagues handle? Smith: The most frequently seen claims have to do with three types of discrimination--- those based on race, gender and disability. There are additional categories, of course, that federal employees have protection against: skin color, religion and reprisal for previous EEO activity. This last one, reprisal, doesn't even have to do with having raised an EEO claim, but par- ticipating as a witness an EEO claim sometimes results in reprisal, and you're protected from that. Race, sex, gender and disability really are among the most frequently types seen. Can you tell our readers more about dis- ability claims? Smith: One thing people should keep in mind on this is that if you allege it, you need to be able to perform the essential functions of your job. To qualify, the disability needs to affect 'life activity'---that's the term of art the govern- ment uses. It must affect, then, from simple chores to an inability to walk---it's a broad range of things that fall under this term. But, as far as your job goes---even if you can't walk---you, for example, may have a sedentary job that you can keep performing. In that case, if you are suf- fering discrimination based on that, you could claim disability discrimination. However, if you end up with a disability that makes it so you can't perform your job, then you shouldn't pur- sue a disability discrimination case, but instead need to move on and claim disability retire- ment. You really need to speak to an attorney to make sure on this point. How does reasonable accommodation fig- ure into the equation? Smith: The process of getting reasonable accommodation for your disability starts with your agency. Your disability may be a tempo- rary matter---you are having or just had surgery, for example. If it is temporary, for example, you can request accommodation. Your managers could put you in light duty to accommodate you. Or, sometimes, an agency comes back and says, 'no, we cannot accommodate you.' Sometimes, at that point, you can get them to alter this stance. Sometimes, instead, your only option is disability retirement. Can you describe some of the difficulties encountered by federal employees pursuing discrimination claims? We understand that sometimes there is retaliation at work, or the case takes a very long time to process. Smith: Well, one thing I would say is the major difficulty people run into is not neces- sarily about proving their case. A lot of people have legitimate cases---we have a number of employees here, pursuing a lot of legitimate cases for clients that can be won. The prob- lem people run into is that the procedure is demanding. There are a lot of different steps. These cases don't usually go to a courtroom. They go to a conference room, usually, with just the client, the lawyer, a judge and a lawyer for the agency. So, when a complainant doesn't View from the cliff Many of us who "cover" Washington, either for TV, radio, the print press or the Internet, have two groups of people to impress: Our editors and you. To do this, we must ferret out news. Absent that, we can fall back on what-if scenarios that fill the space, keep the 24/7 news cycle cycling, and allow us to avoid doing what most Americans do, which is real work. To be a top pundit (or a more lowly one who still has to make a buck), it is essential that people (if not our peers) believe that we have access to the power brokers, and to insiders who feed us information. Unfortunately, most of the insiders I know are people who work in cubi- cles or offices that are not near win- dows. Still, from time to time even those "insiders" come up with some- thing and help keep us in the know. Since mid-2011, the talk of the town (at least this town) has been the deficit, taxes and tax reform, and spending cuts. Both political parties INSIGHT BY MIKE CAUSEY continued on page 2 For more news...see Federal Daily at www.FederalDaily.com • Whistleblower bill passes 3 • Focus moves to contractor caps 4 • Rulings Roundup 6 • Informed Investor 8 • Federal Benefits Q&A 9 continued on page 3
Nov. 19, 2012
Dec. 3, 2012