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The Rehabilitation Act Now Protects TSA Officers From Discrimination Based On A Disability

The Rehabilitation Act protects most federal employees from discrimination because of a disability, just as the Americans With Disabilities Act protects those who work in the private sector.  

The Rehabilitation Act requires federal agencies to provide reasonable accommodation to applicants and employees who have a disability but who are otherwise qualified for the position sought or held by them.  As amended, the Act now expressly incorporates the standards of the Americans with Disabilities Act.  For all practical purposes the essential requirements of these two statutes are identical. 

The U.S. Congress hastily created the Transportation Security Administration (TSA) in response to the terrorist attacks of 9/11/2001.  TSA has always contended that the Rehabilitation Act does not apply to its security screeners - the officers who screen passengers and their luggage for weapons and explosives at airports throughout the U.S.

The Aviation and Transportation Security Act (ATSA) which Congress hastily passed to create the agency directed the administrator to set employment standards for security screeners "notwithstanding any other provision of law" - see 49 USC §44395(e).  TSA, which is part of the Department of Homeland Security, has successfully argued that this broad language means it can hire and fire employees as Transportation Security Officers (TSO's) without regard to the Rehabilitation Act.  This means that, unlike other federal agencies, it is not required to accommodate a TSO if the requested accommodation would conflict with the stated physical requirements for the position.

Many federal courts have accepted this argument and held that Congress intended TSA to be exempt from the Rehabilitation Act's requirements.  See, for example, Castro v. Secretary of Homeland Security, here (11th Circuit, 2006).

A recent decision in the federal district court for the Southern District of Florida rejected this argument. U.S. District Judge Jose E. Martinez denied the government's motion to dismiss a lawsuit brought by a former TSO who claimed that TSA officials at the Miami International Airport discriminated against him because of a disability - a back injury which was aggravated by repetitive lifting of heavy luggage as required in the baggage screening area where he worked. 

The plaintiff further claimed that TSA violated the Rehabilitation Act by repeatedly refusing to provide a readily available accommodation in that its officials repeatedly denied his requests to transfer from screening check baggage to screening passengers and their carry-on luggage at security checkpoints.  The officers' usual tasks at the security checkpoints do not require nearly as much heavy lifting as does screening checked baggage.  (Passengers put their own bags on the conveyor belts and retrieve them after they are x-rayed.  Carry-on luggage is generally much lighter than checked baggage).

The case in which these issues were litigated is styled Oscar Ruedas-Rojas v. Chad F. Wolf, Acting Secretary, U.S. Department of Homeland Security, Case No. 1:19-cv-22522-JEM.  The Law Offices of Donald R. McCoy, P.A. represented the Plaintiff.  The Court's order is available Here

The Defendant, the Acting Secretary of Homeland Security, moved to dismiss the complaint, arguing that the language of the enabling legislation, ATSA, that permits TSA to hire and fire security screeners "notwithstanding any other provision of law" meant that screeners were not covered by the Rehabilitation Act and could not maintain a legal action for discrimination based on a disability.

In 2012, however, Congress passed legislation called the Whistleblower Protection Enhancement Act.  This statute, 5 U.S.C. §2304, uses the same language as ATSA.  It states that "notwithstanding any other provision of law" any individual holding or applying for a position with TSA shall be covered by the laws and regulations which protect federal employees from many types of discrimination, including the Rehabilitation Act, as well as from reprisals for engaging in whistleblowing.

The Court held that the clear language of the WPEA supercedes that of the ATSA in this regard.  Thus, the complaint alleging that TSA and DHS discriminated against the Plaintiff on the basis of his disability and failed to provide reasonable accommodations as required under the Rehabilitation Act stated a cause of action and would not be dismissed.


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