Today’s case, Kaswatuka v. United States Department of Homeland Security, a published decision from the Fifth Circuit that came down on August 2, 2021, here, deals with an issue we have not dealt with before in our blog. This case concerns a person who works as a security officer at the DFW international Airport. She alleged violations of the ADA among other things. With respect to the ADA, the Department of Homeland Security defended on the grounds that the Aviation and Transportation Security Act preempted the ADA. The court winds up agreeing with the Department of Homeland Security. As usual, the blog entry is divided into categories and they are: court’s reasoning focusing on the applicability of ADA taken directly from the opinion; 49 U.S.C. §44935(a)-(g); and thoughts/takeaways. The reader is free to focus on any or all of the categories. I could see the reader skipping §II perhaps. I can’t see the reader skipping §§I, III.
Court’s Reasoning Focusing on the Applicability of the ADA (taken directly from the opinion).
The ATSA was enacted following the attacks of September 11, 2001 and established the TSA. See Field v. Napolitano, 663 F.3d 505, 508 (1st Cir. 2011); 49 U.S.C. § 114. The ATSA affords the TSA Administrator discretion in developing employment standards for airport security screeners. Id. § 114(e). The ATSA states that “[t]he Administrator shall establish qualification standards for individuals to be hired . . . as security screening personnel. Notwithstanding any other provision of law, those standards shall require, at a minimum, an individual . . . to meet such other qualifications as the Administrator may establish[.]” 49 U.S.C. § 44935(e)(2)(A)(iv) (emphasis added). It also explains that “[n]otwithstanding any other provision of law,” screeners must “possess basic aptitudes and physical abilities, including color perception, visual and aural acuity, physical coordination, and motor skills[.]” 49 U.S.C. § 44935(f)(1)(B). “[T]he use of . . . a `notwithstanding’ clause clearly signals the drafter’s intention that the provisions of the `notwithstanding’ section override conflicting provisions of any other section.” Cisneros v. Alpine Ridge Grp., 508 U.S. 10, 18 (1993). As sections of the ATSA conflict with the Rehabilitation Act, many courts have held that “the language of the ATSA plainly precludes security screeners from bringing suit under certain of the federal employment statutes . . . including the Rehabilitation Act.” See Field v. Napolitano, 663 F.3d 505, 512 (1st Cir. 2011); see also Coleman v. Sec’y U.S. Dep’t of Homeland Sec., 649 F. App’x 128, 129-30 (3d Cir. 2016) (agreeing with the district court that it lacked subject-matter jurisdiction because the ATSA precludes TSA officers from bringing claims under the Rehabilitation Act); Joren v. Napolitano, 633 F.3d 1144, 1146 (7th Cir. 2011) (“We now join every other circuit to have considered the question and conclude that the plain language of the ATSA preempts application of the Rehabilitation Act to security screeners”); Castro v. Sec’y of Homeland Sec., 472 F.3d 1334, 1337 (11th Cir. 2006) (“The plain language of the ATSA indicates that TSA need not take the requirements of the Rehabilitation Act into account when formulating hiring standards for screeners.”). We therefore agree with the district court that Kaswatuka cannot proceed with a Rehabilitation Act claim as it is precluded by the ATSA.
49 U.S.C. §44935(a)-(g)
(a) Employment standards. –The Under Secretary of Transportation for Security shall prescribe standards for the employment and continued employment of, and contracting for, air carrier personnel and, as appropriate, airport security personnel. The standards shall include–
(1) minimum training requirements for new employees;
(2) retraining requirements;
(3) minimum staffing levels;
(4) minimum language skills; and
(5) minimum education levels for employees, when appropriate.
(b) Review and recommendations. –In coordination with air carriers, airport operators, and other interested persons, the Under Secretary shall review issues related to human performance in the aviation security system to maximize that performance. When the review is completed, the Under Secretary shall recommend guidelines and prescribe appropriate changes in existing procedures to improve that performance.
(c) Security program training, standards, and qualifications.–(1) The Under Secretary–
(A) may train individuals employed to carry out a security program under section 44903(c) of this title; and
(B) shall prescribe uniform training standards and uniform minimum qualifications for individuals eligible for that training.
(2) The Under Secretary may authorize reimbursement for travel, transportation, and subsistence expenses for security training of non-United States Government domestic and foreign individuals whose services will contribute significantly to carrying out civil aviation security programs. To the extent practicable, air travel reimbursed under this paragraph shall be on air carriers.
(d) Education and training standards for security coordinators, supervisory personnel, and pilots.–(1) The Under Secretary shall prescribe standards for educating and training–
(A) ground security coordinators;
(B) security supervisory personnel; and
(C) airline pilots as in-flight security coordinators.
(2) The standards shall include initial training, retraining, and continuing education requirements and methods. Those requirements and methods shall be used annually to measure the performance of ground security coordinators and security supervisory personnel.
(e) Security screeners.–
(1) Training program. –The Under Secretary of Transportation for Security shall establish a program for the hiring and training of security screening personnel.
(A) Qualifications. –Within 30 days after the date of enactment of the Aviation and Transportation Security Act, the Under Secretary shall establish qualification standards for individuals to be hired by the United States as security screening personnel. Notwithstanding any provision of law, those standards shall require, at a minimum, an individual–
(i) to have a satisfactory or better score on a Federal security screening personnel selection examination;
(ii) to be a citizen of the United States or a national of the United States, as defined in section 1101(a)(22) 1 of the Immigration and Nationality Act ( 8 U.S.C. 1101(a)(22) );
(iii) to meet, at a minimum, the requirements set forth in subsection (f);
(iv) to meet such other qualifications as the Under Secretary may establish; and
(v) to have the ability to demonstrate daily a fitness for duty without any impairment due to illegal drugs, sleep deprivation, medication, or alcohol.
(B) Background checks. –The Under Secretary shall require that an individual to be hired as a security screener undergo an employment investigation (including a criminal history record check) under section 44936(a)(1) .
(C) Disqualification of individuals who present national security risks. –The Under Secretary, in consultation with the heads of other appropriate Federal agencies, shall establish procedures, in addition to any background check conducted under section 44936 , to ensure that no individual who presents a threat to national security is employed as a security screener.
(3) Examination; review of existing rules. –The Under Secretary shall develop a security screening personnel examination for use in determining the qualification of individuals seeking employment as security screening personnel. The Under Secretary shall also review, and revise as necessary, any standard, rule, or regulation governing the employment of individuals as security screening personnel.
(f) Employment standards for screening personnel. —
(1) Screener requirements. –Notwithstanding any provision of law, an individual may not be deployed as a security screener unless that individual meets the following requirements:
(A) The individual shall possess a high school diploma, a general equivalency diploma, or experience that the Under Secretary has determined to be sufficient for the individual to perform the duties of the position.
(B) The individual shall possess basic aptitudes and physical abilities, including color perception, visual and aural acuity, physical coordination, and motor skills, to the following standards:
(i) Screeners operating screening equipment shall be able to distinguish on the screening equipment monitor the appropriate imaging standard specified by the Under Secretary.
(ii) Screeners operating any screening equipment shall be able to distinguish each color displayed on every type of screening equipment and explain what each color signifies.
(iii) Screeners shall be able to hear and respond to the spoken voice and to audible alarms generated by screening equipment in an active checkpoint environment.
(iv) Screeners performing physical searches or other related operations shall be able to efficiently and thoroughly manipulate and handle such baggage, containers, and other objects subject to security processing.
(v) Screeners who perform pat-downs or hand-held metal detector searches of individuals shall have sufficient dexterity and capability to thoroughly conduct those procedures over an individual’s entire body.
(C) The individual shall be able to read, speak, and write English well enough to–
(i) carry out written and oral instructions regarding the proper performance of screening duties;
(ii) read English language identification media, credentials, airline tickets, and labels on items normally encountered in the screening process;
(iii) provide direction to and understand and answer questions from English-speaking individuals undergoing screening; and
(iv) write incident reports and statements and log entries into security records in the English language.
(D) The individual shall have satisfactorily completed all initial, recurrent, and appropriate specialized training required by the security program, except as provided in paragraph (3).
(2) Veterans preference. –The Under Secretary shall provide a preference for the hiring of an individual as a security screener if the individual is a member or former member of the armed forces and if the individual is entitled, under statute, to retired, retirement, or retainer pay on account of service as a member of the armed forces.
(3) Exceptions. –An individual who has not completed the training required by this section may be deployed during the on-the-job portion of training to perform functions if that individual–
(A) is closely supervised; and
(B) does not make independent judgments as to whether individuals or property may enter a sterile area or aircraft without further inspection.
(4) Remedial training. –No individual employed as a security screener may perform a screening function after that individual has failed an operational test related to that function until that individual has successfully completed the remedial training specified in the security program.
(5) Annual proficiency review. –The Under Secretary shall provide that an annual evaluation of each individual assigned screening duties is conducted and documented. An individual employed as a security screener may not continue to be employed in that capacity unless the evaluation demonstrates that the individual–
(A) continues to meet all qualifications and standards required to perform a screening function;
(B) has a satisfactory record of performance and attention to duty based on the standards and requirements in the security program; and
(C) demonstrates the current knowledge and skills necessary to courteously, vigilantly, and effectively perform screening functions.
(6) Operational testing. –In addition to the annual proficiency review conducted under paragraph (5), the Under Secretary shall provide for the operational testing of such personnel.
- A plain reading of the statute, which §§(a)-(g) can be found in §II of this blog entry immediately above, indicates that the Under Secretary has the authority to establish whatever qualifications it wants to establish for security screeners including those that screen out people with disabilities. It is also clear that reasonable accommodations do not factor into any of this according to the plain language of the statute.
- The plain language of the statute only applies to security screening personnel. I can’t tell from either the opinion or the complaint whether the plaintiff was security screening personnel as the term used in both places is, “security officer.” The opinion itself only refers to the plaintiff working as a security officer. Is that the same thing as a security screener? The plain language of the statute suggests that the lack of recourse for any person with the disability working for the Transportation Security Administration only applies to security screening personnel.
- A lesson in how not to do a job description is contained in §44935(f)(1)(B). That is, job descriptions should be organic and not focused on physical abilities. The screener requirements are clearly focused on physical abilities. There may be ways to accomplish what needs to be accomplished without focusing on the physical abilities side of things. That said, if there isn’t, then it is an essential function of the job that simply cannot be done with or without reasonable accommodations, assuming we are utilizing ADA analysis, which we are not. The Job Accommodation Network is fabulous with these kinds of issues.
- It is clear from the statute that if you are a person with a disability working for the Transportation Security Administration as a security screener, it is perfectly permissible for the Transportation Security Administration to discriminate against that person based upon their disability and there will be no consequences for it. Same goes for if a Transportation Security Administration employee working as a security screener becomes a person with a disability. Clearly, no right to a reasonable accommodation either.
- According to the opinion, no Circuit Court split exists. The lack of a Circuit Court split is not surprising because the language of the statute is very clear. I could see a Circuit Court split developing if the Transportation Security Administration employee was not a security screener. In that situation, you would have a strange paradigm where security screeners with disabilities have absolutely no protection under §501 of the Rehabilitation Act, but employees of the Transportation Security Administration who are not security screeners are subject to §501 of the Rehabilitation Act. Could Congress have really intended that?
- One wonders if Pres. Biden could not issue an executive order saying that the Transportation Security Administration has to comply with §501 of the Rehabilitation Act with respect to its security screeners? Would such an order violate the separation of powers in light of the plain language of the statute with respect to security screeners?
- It will be interesting to see whether any executive action is forthcoming. It will also be interesting to see if a Transportation Security Administration employee who is not a security screener is able to get past this decision. I am making the assumption that a Transportation Security Administration employee is not always a security screener. That assumption would seem to be a matter of common sense. That assumption is also backed up by a plain reading of 49 U.S.C. §44935(d), which you can find above.
- One of the problems that people with disabilities have, is that they don’t have easy access to competent attorneys. Law is unfortunately a business. One of the things I consistently see in my practice is that many people with disabilities simply can’t afford competent legal counsel. The other thing I see in my practice quite a bit is that there are not a lot of people litigating on behalf of people with disabilities in the title II and title I context. It seems that disability discrimination scares a lot of attorneys off for a variety of reasons, not the least of which is that the ADA, as we know, can get very complicated in a hurry. The duty of competence would demand that attorneys who don’t know this area of law the way they should, would get attorneys/consultants involved who do know the area. It often doesn’t happen that way though.