Saturday, February 07, 2015

disability discrimination, but for, MSPB

Southerland v. Department of Defense2011  MSPB 92 (October 5, 2011), it interpreted the Americans With Disabilities Act Amendments Act (ADAAA) and held that if an employee is not challenging the agency's failure to make reasonable accommodation and does not require a reasonable accommodation, the analysis should proceed under the “regarded as” prong of the definition of disability, which does not require a showing of an impairment that substantially limits a major life activity or a record of such an impairment.  It also held that a “but for” test applies under the ADAAA, i.e., that the employee must show that but for the disability, the agency would not have taken the appealed action, and the burden of persuasion does not shift to the agency to show that it would have taken the action regardless of disability, even if the appellant produces some evidence that disability was one motivating factor in the adverse employment action. 

http://www.mspb.gov/ppp/ppp.htm

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