AJ Mary Elizabeth Bullock's public comment to EEOC on The Federal Sector's Obligation To Be a Model
    Employer of Individuals with Disabilities: "Houston, I Think We Have A Problem: The Inherent Dilemmas of
    a Schedule 'A' Appointee."

    Mary Elizabeth Bullock is a retired EEOC administrative judge.  She is the author of "Judging Me"/Radio Show Program
    Judging Me/Radio Show Panelist for NAACSA/La Suena Dolche/EEOC Judge
Administrative Judges' Pleas for  Reforming EEOC
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                                              HOUSTON, I THINK WE HAVE A PROBLEM!


On May 15, 2014, the U.S. Equal Employment Opportunity Commission (EEOC/Commission)
published an Advance Notice of Proposed Rulemaking in the Federal Register (79 Fed.Reg. 27,824-
27,826). The Notice was titled “The Federal Sector’s Obligation To Be A Model Employer of Individuals
with Disabilities.” The EEOC is seeking public comment on how to implement the federal government’
s statutory obligation to be a “model employer” of the disabled.  The Notice seeks answers to
questions about the hiring of disabled employees, retention, promotions, supervisorial and
managerial accountability for hiring and retention of the same. A total of seven (7) questions are asked
by the Commission to initiate discussion and comments for guidance on the strict specificity of what,
in essence, does a model employer for the disabled look like. Comments are due by July 14, 2014
footnote1). The undersigned author respectfully requests that all federal employees, regardless of
whether you are disabled, look at the questions proposed by the Commission found in the Federal
Register at https://www.federalregister.gov/articles/2014/05/15/2014-11233/the-federal-sectors-
obligation-to-be-a-model-employer-of-individuals-with-disabilities and respond. (
fn 2)

All responsibility for the administration and enforcement of equal opportunity in federal employment is
vested in the EEOC. The Commission is authorized under 29 U.S.C. 794a (a)(1) to issue rules,
regulations, orders, and instructions pursuant to Section 501 of the Rehabilitation Act. Pursuant to the
above, the EEOC meets the necessary jurisdictional question as to whether the EEOC has standing to
promulgate such laws, rules, regulations etc. The Chairwoman stated that her concern is in regard to
additional guidelines and regulations as to the fulfillment of the statutory requirements of Section 501
of the Rehabilitation Act and what it means to be a “model employer” of individuals with disabilities in
fear that federal agencies may not fulfill their obligations.  The author of this article is very concerned
about the rights of the disabled when the federal government is relying on the public
(fn3)  to tell them
how to be a leader, an educator, an enforcer, act without bias or prejudice, be an active listener,
engage in substantial on-going dialogues with the disabled employee and support services, to
research - assume the responsibility to be informed of what is available via technology, to advance the
individual case of the disabled employee (for whom first, second and third level management is
responsible), measures of supervisorial accountability and the consequences for failure to do what is
required by law, just to list a few. Leadership, compassion, ethics, integrity and a moral compass
cannot be legislated, taught or be learned. Regardless of a supervisor’s level of management,
especially those who hold positions of first, second and third level supervisorial duties, if they hold
biases and prejudices against disabled individuals, or are fearful of budgetary constraints, no
regulation will move them “off the dime” to do anything – it will continue to be business as usual. And,
when the agency does not comply or comport with the necessary actions required of them as to hiring,
retention, promotion, training and full workplace integration will the agencies, the EEOC in particular,
help them cover up the violations against the disabled by defending themselves against these types of
charges as they have been since the EEOC was designated the “model employer” for the disabled?
This narrows the question and leads to the even larger, more substantive question of what and who
will monitor the actions of all actors and how accountable and to whom will they be held accountable?

In all respect, this question cannot be fully answered appropriately without knowing some history
about the federal government’s obligation and responsibility towards the disabled.


In 1990, Congress passed the Americans with Disabilities Act (ADA) which was incorporated into the
Rehabilitation Act. In October of 1992, the Rehabilitation Act was amended which adopted the
nonaffirmative action standards of the ADA AND MADE THEM APPLICABLE TO THE FEDERAL

On March 13, 1998, Executive Order 13078 was promulgated, titled “Presidential Task Force on
Employment of Adults with Disabilities.” The task force was charged with creating a coordinated and
aggressive national policy to bring working-age individuals with disabilities into gainful employment
with the federal government at a rate approaching that of the general adult population.

On July 26, 2000, President Clinton issued Executive Order 13163, found at 65 Fed. Reg. 46.563
(2000) and titled “Increasing the Opportunity for Individuals with Disabilities to be Employed in the
Federal Government.” Executive Order 13163 was issued to augment the hiring, placement and
advancement of qualified individuals with a disability (
fn 5) into the federal workforce and to establish
goals and facilitate Section 501 of the Rehabilitation Act(
fn 6).  Section 501 of the Rehabilitation Act
contains a clause that mandates federal agencies to engage in affirmative action plans to incorporate
the disabled into the federal workforce. The Order proposed that based on current hiring trends and
increased the number of outreach type programs with the goal of hiring 100,000 disabled employees
(severely disabled or targeted disabilities) within a five year period.

On June 18, 2001, Executive Order 13217 was issued with the goal of increasing the productive
employment of adults with disabilities.

On September 25, 2008, President Bush signed the Americans with Disabilities Act Amendment Act
(ADAAA) with the effective date of January 1, 2009.

Reaching further back into time the Rehabilitation Act of 1973 prohibited discrimination of disabled
employees in the federal government and Section 501 requires federal agencies to develop affirmative
action programs for hiring, placement, and advancement of persons with disabilities. The
Rehabilitation Act of 1973 has been amended numerous times.  Important to this article was an
amendment in 1979 when the term “targeted disabilities” was first officially recognized by the EEOC.
Targeted disabilities, as defined by the EEOC, are listed as follows: blindness (including low vision),
deafness, missing extremities, partial paralysis, convulsive disorders, mental retardation (
fn 7),  
mental illness, or genetic or physical conditions affecting limbs and or spine. Those individuals with
targeted disabilities are precisely the ones the federal government purposefully seeks out because it
is understood that these individuals are less likely to be employed in the private sector. Moreover, the
chances of retention and advancement were far lower then what the federal government considered
acceptable as it was statistically unrepresentative of a diverse workforce. Dozens and dozens of
Management Directives promulgated by the EEOC as to the rights of the disabled and the obligations
of management to the disabled have been issued since the 1970s, to name each and every one of
them would unduly lengthen this article.

The above discussion serves as a bare outline of the history of incorporating disabled employees into
the federal workplace and society’s attempt at breaking away from the once  stereotypes that people
held about the disabled. Unfortunately, the bias and prejudices against the disabled run deeper in our
society than originally perceived. The historical legal background supplies the reader with a
perspective that allows for further examination and inquiry.


A very successful method for achieving employability of the disabled came from the federal
government’s Outreach Programs. Public forums were held by top federal government officials
representing various agencies inviting those who were severely disabled to apply for positions within
the federal government under what is referred to as the Scheduling “A” Appointment Authority (
fn 8).  
Schedule “A” seeks out either targeted disabled employees or severely disabled employees who were
certified as job ready (
fn 9) or through other factors determined as likely to succeed in a particular job.

Schedule “A” Appointees are hired with the understanding that the federal government has taken on a
special obligation and responsibility to the disabled populace that is continuous and on-going in
nature. Perhaps, under Title VII the wording should be changed to something more compelling such
as “the federal government has expressed its obligation and responsibility as a moral imperative to
hire, train, retain and promote disabled individuals into the federal workforce in the spirit of the law as
intended by the past administrations and Congress.  Most agencies have been successful in
recruiting the severely disabled. However, long-term statistics reveal that as an entity the federal
government has not been successful in keeping these valued employees once hired. The goal of
hiring and retention of disabled employees and their integration into the mainstream workforce with
opportunities to promote and advance within the agency are in fact dismal. In 2012, the retention rate
until elective retirement was less than 1% (.088%).
The statistics for the year 2011 reflect that within
the EEOC itself more than 27,000 complaints were filed against the EEOC by its own employees for
failure to accommodate and disability discrimination.
The very same Agency who wrote the laws and
via legislative existence is the enforcement agency for said complaints. Even they fail to do what the
law requires.

A Cornell University Study conducted in 2002 demonstrated that the top agency officials were clear as
to their mission under these programs, and the obligations and responsibilities brought to bear upon
them when undertaking these commitments. However, the key fell away from the lock when the
employee is first assigned to his or her agency position. The real problems arise when those
supervisors at the first, second and often third level are unaware of what is necessary for them to keep
these employees and to fulfill the federal government’s obligations and responsibilities towards
Schedule “A” employees and the affirmative duty to build a unique and diversified workforce (
fn 10).

When a Schedule “A” employee reports to duty it should be so with the understanding that certain
accommodations will be waiting for them so that they may begin their duties with all effective technical
assistance that will allow them to be functioning at their highest level of competence, be competitive
with their colleagues and facilitate their position assignments such that they are able to work under
conditions which would not distract them from the successful completion of the same (
fn 11).  
Therefore, it would make immeasurable sense that the agency contact the prospective employee and
determine from them what accommodations are reasonable, ergo, effective, for the newly hired
severely disabled employee to complete the essential functions of their positions. Most of these
employees have been certified as employment ready by various state and federal rehabilitation
centers and adequately prepared to enter into the workforce with the knowledge, skills, and abilities to
perform the positions they are assigned to, with a firm grasp of specific technologies necessary to

Memmer v. Environmental Protection Agency (fn 12) is a case currently before the EEOC Commission
as to the Agency’s obligations and responsibilities towards a Schedule “A” hire. The case reads like a
typical Schedule “A” case where no one (at least from the first level through the third level supervisors)
was even aware that Memmer was a Schedule A hire, nor were they aware of their obligations and
responsibilities towards a Schedule “A” Appointee who was blind with a severe neck injury. The EPA
telephoned the Complainant prior to her reporting to duty inquiring as to the accommodations she
would need when she reported to work. She sent a list over a week in advance. Upon her arrival she
was not even assigned an office or a computer, and no requested accommodations were made
available. Her assignments for the first weeks, and months thereafter required intensive scientific
reading without any technology to assist her. Moreover, her first level supervisor relayed to her that if
any accommodations were to be funded from her current operating budget she would not be able to

For someone who is blind, immediately assigned a difficult scientific task that required the ability to
see and to see well, this was a frightening scenario. After all, the new hire had been invited to
participate in an Outreach Program and told to apply for a position with the federal government as she
had a targeted disability. Moreover, she was a recent graduate from the State Department of
Rehabilitation. After spending hours hearing about the federal government’s commitment to seek out
highly qualified severely disabled employees through the various Outreach Programs with the intent to
integrate the severely disabled into their workforce, the employee was not just confused but extremely
worried about her performance, and the ability to sustain her position. When the Agency would not
comply she discovered a source for purchasing accommodations which would not cost the Agency
any money. Good thing Ms. Memmer was a quick study. Unfortunately, her accommodations arrived on
the day they terminated her, approximately, one year later.  Moreover, the Agency failed to contact the
Schedule “A” Program Director at Headquarters to consult with her as to how to assist, help, keep, find
a niche, and maintain a severely blind employee where the hiring commitment was to do so.

Interestingly enough, the administrative judge during Memmer’s hearing ordered the Agency to provide
the Complainant with audio technology such that she could fully participate in the hearing process yet
in her decision somehow held that the Agency provided effective
accommodations to Memmer by providing her with stronger magnification which did not correct the
problem. When a person is blind you can blow up the words to billboard size and it is absolutely
worthless when the individual requires full-time audio technology combined with sophisticated
equipment that supports such a program.

The Commission has not reviewed a Schedule “A” case in some time. A win for the Complainant in
this case would send a message to all agencies that the promise they embark upon when hiring a
Schedule “A” Appointee is one that is on-going and supportive in hopes of keeping the employee in a
suitable position. Otherwise, what occurs is a tragic re-victimization of the severely disabled employee.
The employee feels guilty because no one person assisted them full well-knowing it was impossible
to see, staff and management pretended as if the disability was not present which at the very least
belittled the employee and was cruel, while diminishing their overall feeling of contributing something
worthwhile. Terminated without the proper oversight and advice of the Program Manager for Schedule
“A” hires, without a chance to make the situation right - damages the disabled far more than if they had
never held out hope through the federal government’s program to become a contributing member of
society despite their severe disabilities. The purpose of federal legislation was to call society’s
attention to the fact that disabled people are people too with goals, aspirations, dreams, and a need to
feel a part of something greater. It is important to understand that those who cannot see with their
eyes are still sighted as they too can visualize what is possible with technology. They have been
trained for the position they sought, they have a life time of experiences to draw from with ideas that
can make a difference in the success of any agency endeavor if allowed to blossom.  Memmer, while
blind, had advanced scientific degrees and with audio technology was fully capable of “reading”
important scientific reports, making deductions, drawing conclusions, and writing detailed reports. In
another recent and on-going case,
Murry v General Services Administration (fn 13), an 80% disabled
Vietnam War Veteran, (female, African American with PTSD) was successfully performing for years
until they moved her office into a rat infested building. She could have remained productive through
hard work and guidance, if management’s commitment were such and GSA did not tread on her fears
or use tactics to worsen them (
fn 14).  

The federal government has a long way to go to accomplish its mission. It is not for want of knowing
what is the right thing to do and how to do it but it has to have the commitment to do so from the top
down. The agency knows that it must educate first, second and third level management and then hold
them to serious accountability as to why the employee was not retained or what they failed to do to
enhance that employee’s chances of success. The agencies failure to retain those employees with
targeted disabilities and/or severe disabilities has now re-victimized them again because these very
same individuals, once terminated from the federal government are invariably blackballed from any
employment elsewhere. A fact of government employment. Now, this severely disabled employee
stands in a worse position then if he or she had never been hired by the federal government. Since
this has been on-going for decades even state rehabilitation agencies which help prepare the
severely disabled for employment are now reluctant to send their graduates to the federal government
for employment.

We have great hopes that the EEOC Commission will address these cases in the near future with firm
guidance for management.        


The EEOC is now revisiting this very issue as President Obama’s 2010 Executive Order sunsets.
Since the federal government has not been able to comply with the mandated orders we are being
alarmingly alerted to the fact that if we, the public, do not comment, and with specificity, spell out to
them how to comply with the law the federal government, in essence, will not and cannot meet the
obligations and responsibilities spelled out under the laws as to Section 501 of the Rehabilitation Act.

This is no less shocking then the President sending out mass e-mails to constituents asking how to
lead the nation, and by the way hurry with your answers. Regardless of how a situation may appear I
am an eternal optimist. By extension, I ask you to be the same. As federal employees we have always
gotten down to business and done the work as the job demanded, and for the most part, done it well.
We are amazingly qualified under the doctrine of common sense. Perhaps, since the time is drawing
near for comments we should ask for an extension as this is no small matter. You have the power of
your voice and your pen. You can go through these seven questions individually or in groups and
submit your comments. Please, let’s use the tools we have to bring to bear on this conundrum and
stop the stonewalling of individuals who know better but cannot do better. After all, the EEOC gets paid
the big bucks and they should solve this on-going problem themselves. Do not let inaction on their
part harm so many others who deserve better from all federal employees. Not because we are
mandated to do so, but because in doing so, we are helping those more vulnerable in a system
seemingly stuck.

Respectfully submitted,

Honorable Mary Elizabeth Bullock (Retired)

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