Federal Employee's Request for Reasonable Accommodation is a Protected Activity - Agency May Not Retaliate

The Rehabilitation Act of 1973, 29 U.S.C. §701 et seq., protects a federal worker from discrimination because he or she has a disability.  The Act requires agencies to provide reasonable accommodation to an individual's physical or mental disabilities unless the agency can prove that the requested accommodation will create an undue hardship.  In this regard the Act incorporates the protections afforded under the Americans with Disabilities Act, as amended, which includes more recent and more detailed requirements.  Accommodation may involve the removal of physical barriers.  It may also include job restructuring and part-time or modified work schedules.  Thus, a flexible work schedule may qualify as a reasonable accommodation.

Both laws expressly prohibit employers from taking retaliatory actions against employees who oppose acts or practices which are made unlawful, for making charges and/or for participating in related investigations or proceedings.  It is also unlawful to coerce, intimidate, threaten or interfere with any individual in the exercise or enjoyment of rights granted or protected by either Act.  In Solomon v. Vilsack, 763 F.3d 1 (DC Cir. 2014) the U.S. Court of Appeals for the District of Columbia Circuit further extended a federal worker's protection against reprisals for seeking to vindicate her rights under the Rehabilitation Act.  It held that her request for accommodation - in this case, her request to continue a flexible work schedule - was itself a protected activity.  She could recover damages for unlawful retaliation if she could prove that the agency took any adverse action because of her request.

Thus, the agency supervisor may have unlawfully retaliated against the employee by revoking the employee's permission to work on a flexible work schedule after she requested reasonable accommodation.

In a subsequent case a district court in D.C. also noted that an "adverse action" for this purpose would be any action which could reasonably be expected to deter an employee from exercising her rights under the Act.  Where a State Department employee alleged she received an unwarranted warning letter after she requested accommodations to her various medical conditions the district court held that she could pursue a claim of unlawful retaliation under the Rehabilitation Act.  See Sanders v. Kerry, 2016 U.S. Dist. LEXIS 75567, 180 F. Supp. 3d 35 (decided March 16, 2016).

Consistent with Solomon v. Vilsack, the Eleventh Circuit has also held that a request for accommodation constitutes protected activity for which retaliation is prohibited under both the Americans with Disabilities Act and the Florida Civil Rights Act. See Frazier-White v. Gee 818 F.3d 1249, 1258 (11th Cir. 2016).