The Americans with Disabilities Act (“ADA”) was adopted to address the biases faced by people with disabilities. Stories regularly report how employees with certain disabilities are at risk of discharge. Research shows that hidden disabilities — such as mental illness — carry a particularly heavy stigma in the workplace because employers often have preconceived notions about the effect of a person’s mental health on their job performance. While the ADA requires that employers accommodate these disabilities, in order to obtain those accommodations employees must reveal their disabilities to their employer.
This vicious circle was worsened for federal employees by a recent decision of the Merit Systems Protection Board (MSPB) in Haas v. DHS. George Haas, who had been diagnosed with bipolar disorder, worked as a Customs and Border Protection Officer at Houston Airport. His duties involved questioning arriving passengers and reviewing their documentation, and there was no indication of any issues arising from his condition. When Haas was reassigned to a different position, which involved passengers who require additional questioning, he asserted that his medical restrictions prevented him from performing these new duties and he requested accommodation. The Agency promptly revoked Haas’s ability to carry a firearm, and ultimately removed him based on its determination that his bipolar diagnosis rendered him unable to perform the essential functions of his position.
Limiting Protection for Employees with Medical Conditions
Haas challenged his removal under a federal regulation intended to prevent removal of a federal employee “solely on the basis of [their] medical history,” unless the medical condition’s recurrence is likely and would create a “significant risk of substantial harm to the health and safety” of the employee or others that cannot be addressed by reasonable accommodation. In Hass, although Haas was asymptomatic and had performed well for 17 years, the MSPB took the “opportunity to clarify the proper standard for the removal of an employee from a position with medical standards, such as the CBPO, based on a current medical condition that impacts his ability to safely and efficiently perform the core duties of his position.”
Based on expert testimony that bipolar disorder is a permanent condition whose symptoms could reappear “at any time,” the Board held that the regulation did not apply, because the agency was not relying solely on his medical “history.” Rather, the Board interpreted “medical history” to include instances “when the employee’s medical records indicate that he was examined or treated for the medical condition in question.” This means that the regulation intended to preclude removal of an employee based on their medical history only applies if they have no medical history of their condition.
Allowing Dismissal based on Assumptions
Since the regulation did not apply, the agency could remove Haas based on his medical condition if it could prove either 1) a connection between the employee’s medical condition and his performance or misconduct, or 2) “a high probability that his condition may result in injury to himself or others.” While the agency had found no fault with Haas’s past or current performance, it removed him based on its assumption that his medical condition prevented him from being able to safely and efficiently perform the core duties of his position in the future.
Haas’s position required carrying a weapon, mental alertness, and working under “dynamic and stressful conditions.” Despite being asymptomatic and assessed as fit for duty by his own healthcare provider, the agency convinced the MSPB that Haas was unable to perform these duties based on his bipolar diagnosis alone. The Board agreed, citing a Federal Circuit finding that when “a party is diagnosed with a medical condition that is by its nature ‘permanent or progressive’ in severity, it will be assumed to continue to exist after the date of diagnosis absent rebuttal evidence of record to the contrary.” Pyles v. Merit Systems Protection Board, 45 F.3d 411, 415 (Fed. Cir. 1995). That decision, however, did not involve reliance on an employee’s medical history to determine his current ability to perform; rather, it reversed a Board decision finding that an appellant’s unrebutted diagnosis of dementia did not justify her failure to timely file her appeal. This Board’s reliance on Pyles allows agencies to remove an employee based on speculation about potential harm or inability to perform, even if the employee is a good performer, asymptomatic, and has no history of job-related impediments. Since employers often have preconceived notions, especially about people with psychiatric conditions, the MSPB has opened the door for federal agencies to remove employees based only on stigma and stereotypes.
Limiting Reprisal Claims
The MSPB’s decision against Haas is also concerning in that he was not protected against reprisal, even though he had exercised his right to request accommodation and allege harassment and discrimination under the ADA. As announced in an earlier 2022 decision, the MSPB continues to apply the “but for” standard to reprisal claims under the ADA, meaning that the protected EEO activity must be the main reason for the agency’s removal or discipline. The but-for standard allows dismissal of an employee’s claim if an employer can show that it would have made the same decision even if it actually relied on the employee’s protected class or activity. In the federal courts, the “but for” standard does not affect employees’ ability to prove discrimination, but may come into play in determining relief. But for federal employees, like Haas, who must rely on the MSPB, their claim of reprisal will be denied if the agency can put forth some other reason for their removal.
For George Haas, the MSPB’s approach allowed his agency to make unsubstantiated assumptions about the potential effect of his medical diagnosis on his future performance. Then, when he complained about the agency’s actions and asserted his right to accommodation, he was unable to establish reprisal based on the agency’s assertion that it relied on those assumptions, rather than his protected activity, when they ended his 17-year career.
Stacy Hickox is an attorney at Kalijarvi, Chuzi, Newman & Fitch.