Affirmative Defenses and Disabilities

Employees may raise a new fact or set of facts to defeat actions taken against them, (e.g., an adverse action under 5 CFR 752 or a performance-based action under 5 CFR 432), even if the facts supporting the actions are true. This is called an affirmative defense. Disability discrimination, sexual orientation discrimination, and whistleblower reprisal are some of the affirmative defenses that can be raised.
We monitor case law and policies and provide guidance to Federal agencies.

Title VII Discrimination

Disability Discrimination Federal agencies are required by law to provide reasonable accommodation to qualified employees with disabilities. The U.S. Equal Opportunity Commission (EEOC) enforces the law which prohibits employment discrimination against qualified individuals with disabilities. EEOC also provides oversight and coordination of all federal equal employment opportunity regulations, practices, and policies. More information about the EEOC's role in reasonable accommodation is located at and
The U.S. Department of Labor's Office of Disability Employment Policy (ODEP) website links agencies to the Job Accommodation Network (JAN), the National Center on Workforce Disability for Adults (NCWD-A) and other disability-related employment resources.
The Civil Service Reform Act of 1978 (CSRA) identifies prohibited personnel practices. The CSRA prohibits any employee who has authority to take certain personnel actions from discriminating for or against employees or applicants for employment on protected bases, including disability. The prohibited personnel practices and the merit system principles for Federal personnel management are codified at 5 U.S.C. 2302.

OPM also has information on reasonable accommodation in the recruitment and hiring process:
reasonable accommodation.
    Reasonable Accommodation
    Sometimes it is necessary for Federal hiring officials to make a reasonable workplace accommodation for a person with a disability, if requested and appropriate (unless so doing will result in undue hardship to the agencies). Reasonable accommodation can apply to the duties of the job, and/or where and how job tasks are performed. The accommodation should make it easier for the employee to successfully perform the duties of the position. Examples of reasonable accommodations include providing interpreters, readers, or other personal assistance; modifying job duties; restructuring work sites; providing flexible work schedules or work sites; and providing accessible technology or other workplace adaptive equipment.
    An individual can request reasonable accommodation either orally or in writing. Individuals who need reasonable accommodation are responsible for making their needs known to their supervisors. The supervisor and the individual should clarify the individual's needs, and identify the appropriate reasonable accommodation required to meet those needs.

    Further details are available on the following websites:

           Read OPM guidance to Federal agencies on
    Disability Discrimination as well as case law and policies.
           Read the
    Department of Labor Office of Disability Employment Policy (ODEP) guidance to agencies on worksite accommodations solutions, recruitment services, etc.
           Read how the
    Computer/Electronic Accommodations Program (CAP), a program of the Department of Defense, provides assistive technology and services to people with disabilities, Federal managers, supervisors, IT professionals, and Wounded Services Members. CAP provides necessary accommodations FREE OF CHARGE to federal agencies.
    U.S. Equal Employment Opportunity Commission (EEOC) Enforcement Guidance on Reasonable Accommodation and Undue Hardship under the Americans with Disabilities Act, October 17, 2002.
    EEOC Policy Guidance On Executive Order 13164 which establishes procedures to facilitate the provision of reasonable accommodation, October 20, 2000.
    Questions and Answers - Policy Guidance On Executive Order 13164 which establishes procedures to facilitate the provision of reasonable accommodation, October 20, 2000.
    EEOC Enforcement Guidance on the Americans with Disabilities Act (ADA) and Psychiatric Disabilities, March 25, 1997.
    ADA Enforcement Guidance on pre employment disability-related questions and medical examinations, October 10, 1995.

    The U.S. Equal Employment Opportunity Commission

    Facts About the Americans with Disabilities Act Title I of the Americans with Disabilities Act of 1990 prohibits private employers, state and local governments, employment agencies and labor unions from discriminating against qualified individuals with disabilities in job application procedures, hiring, firing, advancement, compensation, job training, and other terms, conditions, and privileges of employment. The ADA covers employers with 15 or more employees, including state and local governments. It also applies to employment agencies and to labor organizations. The ADA’s nondiscrimination standards also apply to federal sector employees under section 501 of the Rehabilitation Act, as amended, and its implementing rules. An individual with a disability is a person who:

      A qualified employee or applicant with a disability is an individual who, with or without reasonable accommodation, can perform the essential functions of the job in question. Reasonable accommodation may include, but is not limited to:
        An employer is required to make a reasonable accommodation to the known disability of a qualified applicant or employee if it would not impose an “undue hardship” on the operation of the employer’s business. Reasonable accommodations are adjustments or modifications provided by an employer to enable people with disabilities to enjoy equal employment opportunities. Accommodations vary depending upon the needs of the individual applicant or employee. Not all people with disabilities (or even all people with the same disability) will require the same accommodation. For example:
          An employer does not have to provide a reasonable accommodation if it imposes an “undue hardship.” Undue hardship is defined as an action requiring significant difficulty or expense when considered in light of factors such as an employer’s size, financial resources, and the nature and structure of its operation.
          An employer is not required to lower quality or production standards to make an accommodation; nor is an employer obligated to provide personal use items such as glasses or hearing aids.
          An employer generally does not have to provide a reasonable accommodation unless an individual with a disability has asked for one. if an employer believes that a medical condition is causing a performance or conduct problem, it may ask the employee how to solve the problem and if the employee needs a reasonable accommodation. Once a reasonable accommodation is requested, the employer and the individual should discuss the individual's needs and identify the appropriate reasonable accommodation. Where more than one accommodation would work, the employer may choose the one that is less costly or that is easier to provide.
          Title I of the ADA also covers:
            It is also unlawful to retaliate against an individual for opposing employment practices that discriminate based on disability or for filing a discrimination charge, testifying, or participating in any way in an investigation, proceeding, or litigation under the ADA.
            Federal Tax Incentives to Encourage the Employment of People with Disabilities and to Promote the Accessibility of Public Accommodations
            The Internal Revenue Code includes several provisions aimed at making businesses more accessible to people with disabilities. The following provides general – non-legal – information about three of the most significant tax incentives. (Employers should check with their accountants or tax advisors to determine eligibility for these incentives or visit the Internal Revenue Service's website,, for more information. Similar state and local tax incentives may be available.)