Braille Monitor                                                                  November 1985

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Progress on Affirmative Action for the Blind in the Foreign Service
Victory in the Donald Galloway Case

by James Gashel

Like the United States Armed Forces, the State Department's Foreign Service hangs out the "no vacancy" sign to any blind person seeking employment for overseas active duty. In the Braille Monitor of July, 1982, we reported that the Foreign Service had adopted a new angle on affirmative action. Any blind person who applies for overseas assignment will be turned down based on medical standards. Then the blind candidate may ask a special panel to review the rejection and grant a waiver of the medical standards. So affirmative action for employment of the blind in the Foreign Service amounts to selected waiver of the medical standards, but only if the candidate asks. That's hardly an affirmative approach to employment of the blind, as we pointed out.

What happens if the special panel fails to grant a waiver? If the candidate is otherwise qualified for employment (even in an overseas position) a denial based on medical standards alone would be an act of discrimination unless the standards were proven to be reliable and valid. That 's where Donald Galloway comes in. In 1981, he applied for an administrative foreign service officer position. Mr. Galloway is totally blind. After Donald Galloway took the required Foreign Service examination and oral interview, his application for employment was transferred to the State Department's medical officer for the routine determination that Foreign Service medical standards would bar his employment. Then came the special panel. It, too, reviewed Mr. Galloway's application and qualifications but decided not to waive the medical standards. So in February, 1982, Mr. Galloway received notice that the consideration of his application for employment in the Foreign Service had been terminated due to his blindness. His daughter's deafness was also noted as an additional reason for rejecting Mr. Galloway for service overseas.

But Mr. Galloway wasn't buying it. Beginning in 1977, agencies of the federal government were required to have equal employment opportunity grievance procedures for complaints of discrimination based on handicap. Although there have been other incidents with the Foreign Service in years past, this was the first test case under the new equal employment opportunity procedures. That gave Mr. Galloway an advantage over other blind persons who have faced the same type of discrimination in the past but without any recourse.

In addition, Mr. Galloway had already demonstrated that his blindness was not an obstacle to service abroad on behalf of the United States. That was something the State Department had apparently failed to think about when the medical standards were devised and misapplied in this case. As it turned out, Donald Galloway had just completed over two years' service abroad as director of Peace Corps operations in Jamaica. So why could he not serve in an administrative post in the Foreign Service? The medical standards were obviously out of touch with reality. Blindness is not a bar to living successfully and performing useful work in the United States or abroad. That's what we have been trying to tell the State Department for many years. Now we had a live candidate with actual experience performing in foreign lands, and we had an equal employment opportunity procedure to back him up.

Considering Mr. Galloway's experience and demonstrated ability, the rejection by the Foreign Service was incomprehensible. So in April, 1982, we filed a formal equal employment opportunity complaint on Mr. Galloway's behalf. His written request for assistance from the National Federation of the Blind has an interesting twist. He wrote:

Silver Spring, Maryland
March 31, 1982

Dear Mr. Gashel:

I am formally requesting the support of the National Federation of the Blind in my efforts to access the State Department. I have applied to the State Department for the position of Foreign Service Officer and have been rejected on the basis of my blindness and my daughter's hearing disability.

Pursuant to our conversation of March 25, I have great appreciation for the philosophy and past actions of the Federation in the area of civil and human rights for the blind. I truly feel that this blatant discrimination by the State Department is directed not only against me as a qualified candidate but against the blind as a class. I therefore further request that the National Federation of the Blind be my primary legal representative.

There will be no further contact with the American Council of the Blind and contacts with any other organization supporting our efforts will be agreed on jointly. . .

The deadline for the formal complaint through the EEOC is April 7, 1982. Your prompt attention to this matter with our attorney will be appreciated.

Sincerely,

Don Galloway

cc: American Council of the Blind

During much of 1982 and some of 1983 the complaint we filed for Mr. Galloway was thoroughly investigated. We obtained the services of a Washington, D.C. law firm and decided to dig in for the duration. It wasn't long after the investigation was over that we began to hear rumblings of settlement coming from the State Department attorneys. But neither the NFB nor Mr. Galloway was interested. The settlement, if there was to be one, would have to represent a policy change with respect to blind persons serving in the Foreign Service. Moreover, Mr. Galloway would have to be compensated for the income he lost because of the illegal turndown dating back to February, 1982. In other words, the only settlement we had in mind would be a victory for Mr. Galloway and all of his fellow blind. We would not back away to avoid expensive litigation. We were in this battle for the duration, and we instructed the attorneys accordingly.

In terms of money, the price tag for settlement was high. If Mr. Galloway had been hired in the Fall of 1981 as he expected to be, he would have earned between $45,000 and $50,000 per year at a minimum. Then there would be annual increases and the possibility for promotions, as well. The longer the talks went on, forestalling litigation, the higher would be the price for the State Department to obtain a settlement. Nothing less than full compensation for Mr. Galloway was in order. That was our objective along with a commitment to future affirmative action (real affirmative action) by the State Department. After awhile, with the prospect of litigation facing them, the government attorneys representing the State Department began to understand what we meant.

On May 8, 1985, all issues in the Galloway case were resolved between Mr. Galloway, the Federation, and the State Department. Formal papers were signed accordingly. The settlement we reached is one of tremendous significance which should now open up the possibility for blind persons actually to serve in the Foreign Service. In monetary terms alone (although there is a gag order on disclosing the exact amount) Mr. Galloway was compensated by an amount which fairly represented his pay expectations for a period of approximately three years. The fact that the State Department insisted on an agreement not to disclose the exact amount of the back pay award indicates that the settlement was far more than a token. We're talking about lots of money, but not an excessive amount considering Mr. Galloway's salary level and the time it took to resolve the complaint.

With a payment of this magnitude, we can be somewhat certain that officials at the State Department will be far more cautious about turning down qualified blind people in the future. But to insure that they are more cautious, the settlement also contains an acknowledgement by the State Department that federal affirmative action laws for the handicapped apply to employment in the Foreign Service. Until now, the State Department has always been inclined to argue that affirmative action requirements for the handicapped only apply to the Civil Service, not to the Foreign Service. But now the State Department has formally, officially, and irrevocably stated on paper that Section 501 of the Rehabilitation Act of 1973, as amended (Affirmative Action for Handicapped Federal Employees and applicants) applies to the Foreign Service and that the Foreign Service will comply with the requirements of this statute. That is the biggest victory of all in the Galloway case. The claimed exemption from affirmative action requirements by the Foreign Service is gone. Now the medical standards, too, will need to be evaluated to insure that they do not block affirmative action. Although it is likely that there will continue to be some resistance to the entry of qualified persons into the Foreign Service, we are now armed with a new weapon and a powerful precedent to combat it.

So this is the end of the story of Donald Galloway's battle with the Foreign Service. He is in other employment now and has no desire to serve the United States abroad, at least currently. However, Mr. Galloway may well be a future applicant for a Foreign Service post. So presumably will others.

Sometimes blind persons who apply for and receive federal jobs say that they have had no assistance--that they have, as it were, made it on their own. In answer we merely say: "We understand." And we do.