- The Washington Times - Monday, December 18, 2000

A federal court ruling this month in the District implies that government contractors with disabilities do not have the same legal rights as employees when they are subjected to job discrimination.

A tour guide for the U.S. Bureau of Engraving and Printing was unsuccessful in getting her job back after what she described as a dispute with supervisors about her obesity.

Trayon Redd, the tour guide, worked for Aspen Personnel Services, a contractor of the government bureau. If she had been a government employee, she might have been successful in her claim of discrimination based on disability, the U.S. Court of Appeals for the D.C. Circuit, ruled. Contractors, however, do not have the same legal protections when they suffer job discrimination because of a disability.

Tom Coleman, a Washington labor and employment lawyer, says the court's reasoning was surprising. Normally, anyone who controls how employees perform their jobs is considered their employer and could be liable in lawsuits, he says.

"I think that in this case the court did a little dance to find that the government did not have any control," Mr. Coleman says. "It does limit the government's liability."

Miss Redd, who is 5 feet, 7 inches tall and weighs about 348 pounds, conducted tours at the Bureau of Engraving and Printing from July 1995 until March 1996. Aspen Personnel Services trained the tour guides and paid their wages and benefits.

Under the company's contract, the Bureau of Engraving and Printing retained the right to reject any tour guide. However, only Aspen Personnel Services could hire and fire them.

Miss Redd says that while she worked as a tour guide, the Bureau's technical representative, Antoinette Banks, made insulting remarks about her obesity in the presence of her and her mother. She was terminated from her job the same day her mother protested the remarks to Bureau of Engraving and Printing supervisors, she says. They told her that her job performance and evaluations were deficient.

Miss Redd reapplied to Aspen Personnel Services, saying she wanted her job back. The Bureau of Engraving and Printing, however, refused to accept her back as a tour guide. Aspen Personnel Services said she could have some other job but that she could not return to the Bureau as a tour guide.

Miss Redd filed a lawsuit against the Treasury Department under sections 501 and 504 the Rehabilitation Act of 1973, which forbid job discrimination by government agencies against disabled employees. She relied on court decisions that classified obesity as a disability.

The U.S. District Court for the District of Columbia ruled that Miss Redd could not sue the Treasury Department under section 501 because she was not its employee. She was an employee only of Aspen Personnel Services.

Miss Redd appealed. She argued that the Treasury Department was her joint employer.

The U.S. Court of Appeals for the D.C. Circuit also ruled that Miss Redd could not sue under section 501. Only workers whose "means and methods" of employment are controlled by government agencies can sue under section 501 of the Rehabilitation Act, the court said.

In Miss Redd's case, Aspen Personnel Services controlled hiring, firing, training, payroll and benefits for her job.

"The evidence on these matters does little to prove Redd an employee of the Bureau," the appellate court said. "Of course the Bureau provided office space and the tour guides worked at the Bureau, but in context this proves little."

The court added that "the Bureau is a printer of currency and stamps. Tours are part of its public relations, not an integral part of its business." Miss Redd's attorney, Leizer Goldsmith, says the ruling is "more restrictive than I would have liked."

The fact a Bureau of Engraving and Printing supervisor notified Aspen Personnel Services that Miss Redd should not be allowed to return to her tour guide position indicated the Bureau influenced her firing, Mr. Goldsmith says.

"The problem is that if a federal agency can work its will to get someone fired for discriminatory reasons and then not be held accountable because they're not viewed as the employer, then that may present a green light to federal agencies to act in a discriminatory way," he says.

He predicts the ruling will have consequences for many of the contract workers in government agencies.

"It's a very common arrangement and there haven't been very many decisions on it," Mr. Goldsmith says.

The court said there is a possibility Miss Redd might be able to sue under section 504 of the Rehabilitation Act, but only if her employment could be classified as a federal program or activity. The appellate court sent the case back to the lower court to determine whether contractors' jobs can be considered part of a government program or activity.

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