The Epilepsy Foundation, in a formal letter from Board of Directors Chair Tony Coelho to Homeland Security Secretary Michael Chertoff, objected to the Transportation Security Agency policy on the employment of airport security screeners with epilepsy and other disabilities. The full text of this letter follows.
December 22, 2005
Mr. Michael Chertoff
RE: Discrimination against Individuals with Epilepsy
On behalf of the Epilepsy Foundation, I am writing to express our dissatisfaction with the Transportation Security Administration's (TSA) policy on the employment of airport security screeners with epilepsy and other disabilities. Given our advocacy role on behalf of the 2.7 million people with epilepsy in the U.S. and their families, we are particularly concerned with TSA's position that the Rehabilitation Act is not binding upon the agency.1 Apparently, as a result of this position, TSA's policy is to deny individuals with epilepsy and other disabilities opportunities to serve as security screeners without full consideration of their actual ability to safely and effectively perform in the position.
We have been informed that just recently an airport security screener with epilepsy was terminated from his position, notwithstanding the fact that two of his treating physicians (after being advised of the job requirements) attested to TSA that the individual was fully able to safely perform in this position. It appears that full consideration may not have been given to whether this employee could have been provided a reasonable accommodation to address any limitation in his ability to perform in the security screener position. If so, this approach is inconsistent with a basic principle of the both the ADA and the Rehabilitation Act.
We understand that in numerous cases before the Equal Employment Opportunity Commission and before at least two federal district courts, the TSA has argued that, as a result of language contained in the Aviation Transportation and Security Act (ATSA), the Rehabilitation Act does not apply to it. In essence, the TSA is arguing that it may discriminate against individuals with disabilities – including individuals with epilepsy - without repercussion. In fact, in a letter authored by H. Lee Einsel, Field Counsel for the TSA at Dulles Airport, he wrote "TSA security screeners appear not to have the option to seek reasonable accommodation under the Rehabilitation Act."
Even were it true that the ATSA authorizes the TSA to disregard the requirements of the Rehabilitation Act with respect to security screener positions, it does not follow that the TSA must create standards that exclude from these positions persons with epilepsy and other disabilities without consideration of their actual ability to perform. It similarly does not follow that the TSA must exclude from these positions such individuals without determining whether there are available reasonable accommodations that would enable them to perform the essential job duties.
The Epilepsy Foundation calls on the Department of Homeland Security and TSA to ensure equal employment opportunity to all persons with epilepsy and other disabilities in these positions, notwithstanding TSA's apparent discretion to apply exclusionary qualification requirements. TSA should fairly evaluate, on an individualized basis, the qualifications of all applicants and employees with epilepsy and other disabilities, and, in doing so, should rely on the most current medical knowledge and/or the best objective evidence. Further, TSA should provide reasonable accommodations when necessary to ensure that such individuals can effectively and safely perform in the relevant position.
Please do not hesitate to contact the following individuals on the Foundation's staff with any questions: Gary Gross, Director, Jeanne A. Carpenter Epilepsy Legal Defense Fund; Alexandra K. Finucane, Vice President, Legal and Government Affairs. Both may be contacted at (301) 459-3700.
Chair, Board of Directors
The Epilepsy Foundation, the national voluntary agency solely dedicated to the welfare of those with epilepsy and their families, works to ensure that people with seizures are able to participate in all life experiences; and to prevent, control and cure epilepsy through research, education, advocacy and services. The Epilepsy Foundation has, since its inception, worked to dispel the stigma associated with seizures, and has supported the development and full implementation of laws, including the Rehabilitation Act, that protect individuals from discrimination based on stereotypes and fears.