Yesterday, a unanimous Sixth Circuit affirmed a jury award
of $92,000 to an inside employment law attorney who sued under the ADA and PDA after she was required
to take paid medical leave during a ten week period of modified bed rest
relating to a difficult pregnancy. Mosby-Meachem v. Memphis, Light, Gas & Water Div., No. 17-5483. The biggest
take away is that employers should not argue with their inhouse employment
attorneys. Based on the conflicting evidence presented at
trial, the jury was entitled to conclude that ten weeks of telecommuting was a reasonable
accommodation under the ADA. Further, by not raising it
before the trial court, the employer waived its argument that the paid leave of
absence it provided the plaintiff was a suitable and effective accommodation
(when the employer typically gets to select which reasonable accommodation to
provide). In any event, there was evidence that the employer had made its
decision to deny telecommuting before engaging in the interactive process with
the plaintiff because the decisionmakers were constrained by the prior
directive from the company president to never allow telecommuting as a
reasonable accommodation. Therefore,
when there is evidence that temporary
telecommuting may be a reasonable accommodation, employers are required to
consider that option even if regular, physical attendance is an essential job
function.
According to the Court’s opinion, the employer’s new General
Counsel had re-affirmed in writing shortly after she began working that inhouse
attorneys were expected to be in the office during business hours. Nonetheless, the plaintiff attorney (who was
responsible for employment law compliance) was permitted to work from home
during a two week medical leave following neck surgery. Other attorneys were also permitted to
telecommute on occasion. During a
difficult period of her pregnancy, the plaintiff attorney was instructed by her
physicians to stay in bed (or close to it) for 10 weeks. She then requested to telecommute for those
ten weeks and did so for the next month while her request was being considered
by the employer’s ADA accommodations committee. However, her request was ultimately denied
because her physical presence was an essential function of her position and
there were concerns about her ability to maintain confidentiality while working
from home. Her appeals were denied. Nonetheless, she was placed on paid FMLA
leave and when that was exhausted, was placed on short term disability
(STD). In the meantime, she lost her law license for
failing to pay an annual registration fee and she fixed that as soon as she was
notified a few months after returning to work (at full pay) shortly after
giving birth. Dissatisfied at being
required to take reduced STD pay and exhaust her FMLA leave before the birth of
her child (and presumably unable to take leave following the birth of her
child), she brought suit for violations of the ADA and Pregnancy Discrimination
Act. The jury ruled in favor of the
employer on the pregnancy discrimination claim, but ruled in her favor on her
ADA claim and awarded her $92,000. The trial
court also awarded her $18,000 in equitable relief based on lost pay and
exhaustion of paid medical leave. It rejected
the employer’s request to reduce her recovery for the period of time when she
was not licensed to practice law. The
employer appealed.
The employer argued that physical presence was an essential
function of the job per the job description, admissions and witness
testimony. As faithful readers may
recall, the en banc Sixth Circuit previously ruled
that physical presence is an essential function of most jobs, meaning that employers cannot be required to eliminate
that function and permit telecommuting. The employer specifically identified her job
duties to supervise staff, be available for emergency “call outs” to meet in
the field, interview and depose witnesses, attend court, etc. (Oddly, there was no discussion in the opinion
about any concerns with her maintaining client confidentiality from home). However, the Court noted that the plaintiff
had introduced conflicting evidence – which the jury was entitled to believe –
that she was “otherwise qualified.”
Remarkably, at least two of the employer’s outside attorneys testified
that they could do some of these tasks for her (for an hourly fee, I’m sure). In addition, the plaintiff testified that she
had never tried a court case or taken a witness deposition. Moreover, the job description was 20 years
old and had not been updated as she had recommended a few years earlier. In light of this evidence, a rational jury
could conclude that the plaintiff was qualified to perform the essential
functions of her position from home for ten weeks.
The Court distinguishes the Ford case on the basis that the plaintiff there was a poor
performer with poor attendance and this plaintiff was not (as though any of
those issues bear on the essential job function analysis). More importantly, the telecommuting accommodations
sought in Ford and Williams v. AT&T Mobility were for
an indefinite time, while the accommodation request in this case was only for
ten weeks. “Because the Ford and Williams cases leave open the
possibility of teleworking as a reasonable accommodation, particularly for a
finite period of time, a jury could have reasonably concluded from the evidence
presented at trial that [the plaintiff] could perform all the essential
functions of her job remotely for ten weeks.”
By now, many readers are wondering why the paid leave
provided to the plaintiff was not a sufficient reasonable accommodation. The employer finally raised that issue on
appeal, but the Court rejected it because the employer apparently failed to
raise it before the trial court and parties cannot raise arguments – even good
ones – for the first time on appeal. In
any event, the Court observed that the plaintiff had introduced evidence that
the employer had failed to engage in the interactive process in good faith (at
the conclusion of which, the employer would be permitted to select an effective
accommodation, even if not the one most preferred by the employee). Specifically, the plaintiff was told before
any discussion about her accommodation request that the company president had
made clear that no one would be permitted to telecommute and that the ADA
Committee resolved her request with that directive in mind. Thus, even considering the employer’s right to
provide any effective accommodation, the Court seemed to imply that the jury
would be entitled to reject the employer’s choice if there had not first been
good faith discussions during the interactive process.
NOTICE: This
summary is designed merely to inform and alert you of recent legal
developments. It does not constitute legal advice and does not apply to any
particular situation because different facts could lead to different results.
Information here can be changed or amended without notice. Readers should
not act upon this information without legal advice. If you have any questions
about anything you have read, you should consult with or retain an employment
attorney.
