TSA Not Immune To Rehabilitation Act Claims
On August 6, 2008, the Equal Employment Opportunity Commission issued its decision in Chapman v. Dept. of Homeland Security, EEOC Appeal No. 0120051049. The Commission held the Transportation Security Administration (TSA) was not immunized from the Rehabilitation Act by its enacting statute.
Under a provision of the TSA’s enacting statute (49 U.S.C. § 44395(f)(1)(B)(iii)), TSA security screeners are required to “be able to hear and respond to the spoken voice and to audible alarms generated by screening equipment in an active checkpoint environment.” Chapman, the appellant, had applied for a job as a TSA security screener and was summoned for interviews at the TSA offices in Oak Ridge, Tennessee, in August 2002. Chapman had a hearing impairment which was roughly corrected to normal hearing through the use of hearing aids. However, on the day he visited Oak Ridge, Chapman’s hearing aids were being adjusted.
The testing procedure at Oak Ridge consisted of two parts: Phase I, a computer-based assessment battery with oral instructions, and Phase II, which included an interview, physical and medical tests (including a hearing test) and a background check. Before the Phase I test began, Chapman informed the test administrators of his hearing disability and requested as a reasonable accommodation that either (a) the test administrators speak loudly when giving the oral instructions for Phase I or (b) that he be provided personal assistance to guide him through the test-taking process. The TSA test administrators summarily refused any accommodation. Chapman failed the Phase I test; he was not permitted to participate in Phase II of the test (and thus never received a hearing test from the TSA) and was ultimately not selected for the TSA screener position.
Chapman filed a formal EEO complaint alleging failure to reasonably accommodate and nonselection on the bases of disability and age on March 7, 2003. The case came before an EEOC administrative judge, who dismissed Chapman’s claim for failure to state a claim, finding that the TSA’s enacting statute created a hearing requirement for screener employment which superseded any Rehabilitation Act claim. Separately, the administrative judge granted summary judgment to the TSA, holding that Chapman was unable to show that he was a qualified individual with disability, reasoning that Chapman was not substantially limited in any major life activity since his hearing aids fully corrected his hearing disability. Chapman then appealed the dismissal of his disability claims to the EEOC Office of Federal Operations.
The Commission reversed and remanded the case for further proceedings. First, the Commission held that dismissal was improper under Bell Atlantic v. Twombly, 127 S.Ct. 1955, 1966 (2007), as Chapman had met his burden of stating a complaint which ‘plausibly suggested’ his entitlement to relief. The Commission found that the TSA’s enacting statute did not globally preempt the Rehabilitation Act for TSA screeners, and instead held that a case-by-case analysis was required. Under the case-specific analysis, Chapman’s claims were sufficient as (a) challenging the denial of reasonable accommodation in the testing process, and (b) as asserting that he could have met the requirements of 49 U.S.C. § 44395(f)(1)(B)(iii) in practice and performed the screener job adequately.
In reversing the administrative judge’s summary judgment decision, the Commission took note of the evidence of several audiologists in the record, who detailed Chapman’s hearing disability and the limitations in how far the hearing aids corrected Chapman’s disability. Specifically, these audiologists reported that, even when corrected, Chapman’s ability to distinguish sounds was impaired in loud locations even with hearing aids (causing Chapman to resort in part to lip reading). Accordingly, the Commission remanded for proceedings to determine if Chapman was a “qualified” individual with disability (determination of which would include assessment of whether Chapman could meet the 49 U.S.C. § 44395(f)(1)(B)(iii) standards). The Commission specifically criticized the TSA for its complete refusal to engage in any interactive discussion of Chapman’s requested accommodation at the Oak Ridge testing site.