Thursday, April 28, 2011

Disability Rights Organizations Voice Support for Class Action on Behalf of Disabled Foreign Service Applicants

A consortium of more than 100 national, disability-related organizations joined in support of the class action which was certified in September 2010, seeking to end the United States Department of State’s practice of discrimination against people with disabilities, records of disabilities, and perceived disabilities in the hiring process for Foreign Service Officers. At the request of the State Department, the class certification decision in Meyer v. Clinton (Department of State), a case brought by Bryan Schwartz Law, is currently under review by the United States Equal Employment Opportunity Commission (EEOC).

The Consortium for Citizens with Disabilities wrote to the EEOC, addressing the State Department’s so-called “worldwide availability” policy, which required that applicants prove they are able to work at more than 250 diplomatic posts worldwide, without reasonable accommodations of any kind or need for ongoing medical treatment, before being hired into the Foreign Service. Thus, for example, an applicant (like the Class Agent, Ms. Meyer) who the State Department admitted was able to work at more than 85% of posts without any accommodations, could not be hired, at all, into the Foreign Service, without undergoing a special “waiver” process to prove he or she had “extraordinary qualifications” not required of other, non-disabled applicants. Only a tiny fraction of disabled applicants receive Foreign Service jobs after this discriminatory “waiver” process.

Though numerous court and EEOC decisions have found the application of the “worldwide availability” requirement unlawful, it has never been addressed on a class-wide basis. The Consortium’s letter stated, “The time has come to stop handling these challenges to a discriminatory policy piecemeal – and to address head-on the whole ‘worldwide availability requirement’ as implemented.”

Bryan Schwartz, attorney for the Class Agent, stated, “This support of the organized, disability rights community is critical. This Consortium is a major stakeholder in the EEOC’s performance of its mission to eliminate workplace discrimination, and I hope the EEOC will take the Consortium’s well-reasoned amicus letter very seriously – as it should.”

For more information about Meyer v. Clinton, contact Bryan Schwartz.

The complete letter reads as follows:

April 27, 2011
Carlton M. Hadden, Director
Office of Federal Operations
U.S. Equal Employment Opportunity Commission
One NoMa Station
131 M Street, NE
Suite 5SW12G
Washington, DC 20507

Re: Amicus Letter in Support of Opposition to the Agency’s Appeal of Class Certification Decision in Meyer v. Clinton, OFO No. 07-2011-007; EEOC No. 570-2008-00018X

Dear Director Hadden:

The Rights Task Force, the Employment and Training Task Force and the International Task Force of the Consortium for Citizens with Disabilities (CCD) submit this amicus letter in support of the opposition to the agency’s appeal of the class certification decision in the above-referenced case. This case challenges the State Department’s practice, under its “worldwide availability” policy, of banning people with a variety of disabilities from Foreign Service officer positions.

The CCD is a coalition of more than 100 national disability-related organizations working together to advocate for national public policy that ensures full equality, self-determination, independence, empowerment, integration and inclusion of children and adults with disabilities in all aspects of society. The mission of the Rights Task Force of the CCD is to focus on civil rights and protections for people with disabilities, and for enforcement of rights provisions by federal agencies. The Employment and Training Task Force works on issues relevant to the employment of people with disabilities, particularly issues related to the programs and projects funded under the Rehabilitation Act of 1973, as amended. The International Task Force advocates for United States and international policies which promote the rights and inclusion of persons with disabilities worldwide. Accordingly, the undersigned task forces of the CCD have an especially strong interest in the issues presented by this case, including ensuring the exacting implementation of federal employment policy that maximizes the employment opportunities for Americans with disabilities.

We urge the Commission to uphold certification of the proposed class in this case. The State Department’s worldwide availability policy negatively affects hundreds of employees and job applicants, and needlessly deprives the country of the tremendous public service that could be provided by these outstanding job candidates. In urging this case go forward as a class action, we simply seek to advance the EEOC’s rallying cry that “[t]he Federal Government shall be a model employer of individuals with disability.” 29 CFR 1614.203(a).

Class complaint processing is appropriate because this case meets all of the criteria set forth by the Commission in 29 CFR 1614.204. In addition, this case focuses on a “broad pattern of workplace discrimination,” which is exactly the type of case that the Commission targeted when adopting its current regulations for class complaint processing. As the Commission confirmed in 1999: “[c]lass actions play a particularly vital role in the enforcement of the equal employment laws. They are an essential mechanism for attacking broad patterns of workplace discrimination and providing relief to victims of discriminatory policies or systematic practices.” 64 Fed. Reg. 37651 (1999).

The time has come to stop handling these challenges to a discriminatory policy piecemeal – and to address head-on the whole “worldwide availability requirement” as implemented.

Respectfully submitted,

CCD Rights Task Force Co-Chairs:

Mark Richert
American Foundation for the Blind

Curt Decker
National Disability Rights Network

CCD Employment and Training Task Force Co-Chairs:

Cheryl Bates-Harris
National Disability Rights Network

Alicia Epstein

Susan Goodman
Down Syndrome Congress

Charlie Harles
Inter-National Association of
Business, Industry & Rehabilitation

Susan Prokop
Paralyzed Veterans of America

Paul Seifert
Council of State Administrators of Vocational Rehabilitation

CCD International Task Force Co-Chairs:

David Hutt
National Disability Rights Network

Deb Ziegler
Council for Exceptional Children

cc: Kimberly A. Jackson, Agency Representative
Office of the Legal Advisor, Department of State

Bryan J. Schwartz
Bryan Schwartz Law
Attorneys for Class Agent and the Class

Joseph V. Kaplan
Passman & Kaplan, PC

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