Sixth Circuit Rejects Full-Time Work Schedule as Presumptive Essential Job Requirement Under the ADA

Last month, the Sixth Circuit reversed an employer’s summary judgment on a claim brought under the ADA, FMLA, and Pregnancy Discrimination Act on the grounds that the employer failed to prove that full time employment was an essential function of the position that precluded the plaintiff from working half-time for six more weeks while she recovered from post-partum depression.   Hostettler v. College of Wooster, No. 17-3406 ((6^th  Cir. 7-17-18).  The employer made a few hair-brained decisions:  denying a temporary extension of a requested medical leave (i.e., part-time schedule) right after giving the plaintiff a glowing performance evaluation.   It also failed to engage in the interactive process once it realized that her modified work schedule was more trouble than it was worth and that it questioned her need for leave.   Accordingly, as with another recent Sixth Circuit decision, the Court concluded that an employer’s rescission of a reasonable accommodation constitutes direct evidence of disability discrimination, making the McDonald-Douglas burden shifting analysis inappropriate.  “An employer cannot deny a modified work schedule as unreasonable unless the employer can show why the employee is needed on a full-time schedule; merely stating that anything less than full-time employment is per se unreasonable will not relieve an employer of its ADA responsibilities.” 

According to the Court’s opinion, the plaintiff was hired when she was four months pregnant and worked full time until she delivered.  She requested and was given more than twelve weeks of maternity leave, even though she did not qualify under the FMLA.  When her separation anxiety and post-partum depression precluded her from returning to work full-time, she was granted a reasonable accommodation of returning to a half-time schedule for approximately ten weeks.   She received a glowing performance evaluation in June.  In July, she submitted another certification indicating that she required approximately another six weeks of half-time work before she could return full-time. The next day, she offered to stay a couple hours later each day.  The day after that she was fired.   Although there was evidence that she had timely completed all of her assignments and had even been working a little from home, her boss was very stressed from picking up the slack and was concerned about work that was not getting done at all, like recruiting, lunch trainings, etc.  The plaintiff was not the only employee on medical leave and her boss was often the only person remaining in their small office.  The department was also starting a new online benefits enrollment system that month, which was taking the supervisor’s time as well.  However, a replacement was not hired until October – a month after the plaintiff likely would have returned to full-time work.

The employer argued that the employee only wanted to work part-time for the summer and that the only limitations she experienced with transitory and brief panic attacks.  However, the Court noted that she had been prescribed anti-depressants and had witnesses describe symptoms that went beyond the occasional brief panic attacks.

The “crux” of the case was whether the plaintiff was qualified for her position with or without a reasonable accommodation.

A job function is essential if its removal would fundamentally alter the position. . . . Put another way, essential functions are the core job duties, not the marginal ones . . . .

This analysis does not lend itself to categorical rules—it is “highly fact specific. . . . Although this court has stated that “[r]egular, in-person attendance is an essential function” of most jobs, EEOC v. Ford Motor Co., 782 F.3d 753, 762–63 (6th Cir. 2015) (en banc), it is not unconditionally so; courts must perform a fact-intensive analysis.  In determining what functions are essential, courts may consider as evidence—among other things—the amount of time spent on a particular function; the employer’s judgment; “written job descriptions prepared before advertising or interviewing” for the position; and the consequences of not requiring the employee to perform the particular function.  29 C.F.R. § 1630.2(n)(3).  Although the employer’s judgment receives some weight in this analysis, see Williams v. AT&T Mobility Servs., 847 F.3d 384, 391–92 (6th Cir. 2017), it is not the end-all—especially when an employee puts forth competing evidence.

The Court found that the plaintiff had created a factual dispute about whether full-time work was an essential function of her position.  A co-worker supplied an affidavit that there was no work within the department which was not being accomplished.  The plaintiff had just weeks earlier received a positive performance evaluation which confirmed that she was performing her job. Indeed, the plaintiff had never been criticized about her work.   (The Court seemed oblivious to the fact that no rational employer is going to criticize an employee for not performing work while on medical leave).  When asked, her boss could not identify a particular task which was not getting performed.

On its own, however, full-time presence at work is not an essential function.  An employer must tie time-and-presence requirements to some other job requirement.  To be sure, [the employer] cites language from this court’s cases that, when viewed independently from the facts of the cases, supports the college’s position.  But those cases nevertheless carried out a fact intensive analysis of actual job requirements.

The Court continued:

In sum, full-time presence at work is not an essential function of a job simply because an employer says that it is.  If it were otherwise, employers could refuse any accommodation that left an employee at work for fewer than 40 hours per week.  That could mean denying leave for doctor’s appointments, dialysis, therapy, or anything else that requires time away from work.  Aside from being antithetical to the purpose of the ADA, it also would allow employers to negate the regulation that reasonable accommodations include leave or telework.  29 C.F.R. § 1630.2(o)(2)(ii).   

[The employer] may have preferred that [the plaintiff] be in the office 40 hours a week.  And it may have been more efficient and easier on the department if she were.  But those are not the concerns of the ADA:  Congress decided that the benefits of gainful employment for individuals with disabilities—dignity, financial independence, and self-sufficiency, among others—outweigh simple calculations of ease or efficiency.  To that end, the ADA requires that employers  reasonably accommodate employees with disabilities, including allowing modified work schedules.  An employer cannot deny a modified work schedule as unreasonable unless the employer can show why the employee is needed on a full-time schedule; merely stating that anything less than full-time employment is per se unreasonable will not relieve an employer of its ADA responsibilities.  

The Court put limits on his holding:

[The plaintiff] never claimed, nor do we hold, that she had a right to perform her job on a part-time basis indefinitely.  If she had, we might be reviewing a closer case; one in which Wooster at least would have had the opportunity to show that such an accommodation was unreasonable.   . . . But that is not the case here.  Here, [the plaintiff] introduced sufficient evidence to create a dispute of fact over whether her moderate, time-limited accommodation allowed her to perform the essential functions of her position.

The Court also found a disputed issue of fact as to whether the employer had properly engaged in the interactive process. The trial court found it had by having four separate conversations with the plaintiff about the need for her to return to a full-time schedule, but the plaintiff asserted that it had only been discussed once and the employer never responded to her offer to work 6 hours/day.

The Court also reversed summary judgment on the plaintiff’s PDA claim because the trial court had concluded that the plaintiff’s refusal to work full-time was a legitimate and nondiscriminatory reason to discharge her that was not disproven as pretext.  However, the Court had already rejected the full-time work argument and found that the plaintiff had produced sufficient evidence of pretext by questioning whether that was the actual reason for her termination and showing disparate treatment by the longer medical leaves taken by two other employees for non-pregnancy reasons.

Notwithstanding the fact that no reasonable human resources employee could have believe that she was covered by the FMLA, the Court resurrected her FMLA claim by permitting her to pursue an equitable estoppel theory on the grounds that that the employer treated her leave as through she was covered by the FMLA even though she had only worked four months before she began her leave and had been given well more than 12 weeks off work before returning on a part-time basis.

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. 

Supreme Court Creates New Legal Standard For Pregnancy Discrimination Claims

This morning, a divided Supreme Court reversed the employer’s summary judgment in a disparate treatment pregnancy discrimination case, but rejected the legal and statutory interpretation arguments submitted by the government, EEOC, employer and plaintiff.  Instead, the Court created a new standard which applies only to pregnancy discrimination claims.  Young v. UPS, No. 12-1226 (3-25-15).  The issue confronting the Court was how an employer must treat a pregnant employee who requires an accommodation offered to some, but not all, other non-pregnant employees with similar physical restrictions.  The Court rejected most-favored-nations status for pregnant employees based simply on the grounds that accommodations have been offered to only some employees. It also rejected the employer’s argument that pregnant employees only need to be treated the same as other non-pregnant employees.  Instead, the Court slightly relaxed the similarly-situated standard in the prima facie case, rejected certain business justifications, and expanded what could constitute pretext for discrimination. 

According to the Court’s opinion, the employer requires delivery drivers to carry up to 70 pounds.  During her pregnancy, the plaintiff was medically restricted to carrying only 20 pounds.  The employer refused to waive the lifting requirement, to temporarily transfer her to an alternative position or to permit her to work.  She took unpaid leave and ultimately lost her medical coverage.  This lawsuit followed. 

The employer defended its refusal to waive its lifting requirements or to transfer her to a light duty position on the basis that it only accommodated employees with workers’ compensation injuries, who lost their DOT certifications, or who were covered by the ADA (which, should be noted, does not include pregnancy as a disability or require an employer to eliminate an essential job function, but could require a transfer to another, open position).  The plaintiff contended (over the employer’s objection) that it also accommodated other employees with physical limitations.  A union steward testified that the only physical limitations that the employer did not accommodate with a transfer were pregnant employees.   The employer was given summary judgment (on the basis that the plaintiff did not identify similarly situated employees who were treated better), which was affirmed on appeal.  Those courts would only permit the pregnant plaintiff to compare herself to employees injured off the job.

The Court noted that the Pregnancy Discrimination Act has two provisions at issue in the litigation:  the incorporation of pregnancy into the definition of Title VII’s sex discrimination and a duty to treat pregnancy physical limitations “the same . . . .as other persons not so affected but similar in their ability or in­ability to work.” 

The Court rejected the employer’s argument that the second clause in the PDA merely clarifies the meaning of sex discrimination because the clarification would render the first clause superfluous.  Therefore, the Court rejected the employer’s proposed analysis that “courts would compare the accommodations an employer provides to pregnant women with the accommodations it provides to others within a facially neutral category (such as those with off-the-job injuries) to determine whether the em­ployer has violated Title VII.”  That analysis would exist even in the absence of the second clause: “If the second clause of the Act did not exist, we would still say that an employer who disfa­vored pregnant women relative to other workers of similar ability or inability to work had engaged in pregnancy discrimination.”

The  Court also rejected the plaintiff’s argument that an employer must accommodate every pregnant employee’s restrictions if it accommodates any other employee’s restrictions.  The Court found that this granted pregnant employees  “most favored nation” status which would discourage an employer from accommodating the physical restrictions of long-time employees, those employees with special, extraordinarily hazardous and/or necessary skills or elderly employees.  Indeed, seniority is a enumerated defense to a Title VII claim.

The language of the statute does not require that unqualified reading. The second clause, when referring to nonpregnant persons with simi­lar disabilities, uses the open-ended term “other persons.” It does not say that the employer must treat pregnant employees the “same” as “any other persons” (who are similar in their ability or inability to work), nor does it otherwise specify which other persons Congress had in mind.

Moreover, disparate-treatment law normally permits an employer to implement policies that are not intended to harm members of a protected class, even if their imple­mentation sometimes harms those members, as long as the employer has a legitimate, nondiscriminatory, nonpre­textual reason for doing so.

The Court refused to give any significant weight to last year’s EEOC PDA guidance which advised employers to provide the same accommodations to pregnant employees that it provides to employees with work injuries. Both before and immediately after the passage of the PDA, the EEOC guidelines required only that pregnancy be treated the same as other medical conditions:

“Disabilities caused or contributed to by preg­nancy . . . for all job-related purposes, shall be treated the same as disabilities caused or contributed to by other medical conditions.”

  In rejecting the recent EEOC guidance, the Court cited concerns with its

timing, “consistency,” and “thor­oughness” of “consideration.” The EEOC promulgated its 2014 guidelines only recently, after this Court had granted certiorari in this case. In these circumstances, it is fair to say that the EEOC’s current guidelines take a position about which the EEOC’s previous guidelines were silent. And that position is inconsistent with positions for which the Government has long advocated. . . . Nor does the EEOC explain the basis of its latest guidance. Does it read the statute, for example, as embodying a most-favored-nation status?   Why has it now taken a position contrary to the litigation position the Government previously took?   Without further explanation, we cannot rely significantly on the EEOC’s determination.

The Court observed that the PDA was enacted to overrule the Court’s prior decision in General Elec. Co. v. Gil­bert, 429 U. S. 125 where the employer provided sickness and accident insurance to non-pregnant employees and the Court found no sex discrimination because women received the same coverage that men did.  Simply including pregnancy into Title VII would not have changed the result in Gilbert, which was the intent of the second clause in the PDA.

While pregnancy discrimination claims are to be treated similarly to any other sex discrimination claims, they will differ in three material respects.  For instance, the similarly-situated standard must be relaxed:

an individual plaintiff may establish a prima facie case by ‘showing actions taken by the employer from which one can infer, if such actions remain unexplained, that it is more likely than not that such actions were based on a discriminatory criterion illegal under’ Title VII. . . . Nei­ther does it require the plaintiff to show that those whom the employer favored and those whom the employer disfa­vored were similar in all but the protected ways.

In particular, the Court laid out the shifting burdens of proof as follows:

First, the plaintiff must show:

a) that she belongs to the protected class,

b) that she sought accommodation,

c) that the employer did not accommodate her, and that the employer did accommodate others “simi­lar in their ability or inability to work.”

Second, the employer would need to provide a legitimate and nondiscriminatory reason for refusing to provide the requested accommodation.

 

But, consistent with the Act’s basic objective, that reason normally cannot consist simply of a claim that it is more expensive or less convenient to add pregnant women to the category of those (“similar in their ability or inability to work”) whom the employer accom­modates. After all, the employer in Gilbert could in all likelihood have made just such a claim.

Third, the plaintiff must show that the employer’s reason is pretextual.

We believe that the plaintiff may reach a jury on this issue by providing sufficient evidence that the employer’s policies impose a significant burden on preg­nant workers, and that the employer’s “legitimate, nondis­criminatory” reasons are not sufficiently strong to justify the burden, but rather—when considered along with the burden imposed—give rise to an inference of intentional discrimination.

The plaintiff can create a genuine issue of material fact as to whether a significant burden exists by providing evidence that the employer accommodates a large per­centage of nonpregnant workers while failing to accommo­date a large percentage of pregnant workers. Here, for example, if the facts are as Young says they are, she can show that UPS accommodates most nonpregnant employ­ees with lifting limitations while categorically failing to accommodate pregnant employees with lifting limitations. Young might also add that the fact that UPS has multiple policies that accommodate nonpregnant employees with lifting restrictions suggests that its reasons for failing to accommodate pregnant employees with lifting restrictions are not sufficiently strong—to the point that a jury could find that its reasons for failing to accommodate preg­nant employees give rise to an inference of intentional discrimination.

In response to the dissent’s concern that the  Court was imposing liability under a disparate impact theory, it notes that it intends for “continued focus on whether the plaintiff has introduced sufficient evidence to give rise to an inference of intentional discrimination.”

Ultimately, the Court reversed the employer’s summary judgment, but left open the possibility that the employer’s explanation could ultimately prevail on summary judgment because it was expressing no opinion as to whether the plaintiff had introduced sufficient evidence to show pretext.

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.

 

 

OCRC's Proposed Pregnancy Leave Rules Rejected by Legislators

Columbus media are reporting that the General Assembly's Joint Commission on Agency Rule Review struck down in a 9-1 vote yesterday the OCRC's proposed new rules mandating twelve weeks of maternity leave for female employees in the state (as summarized here on October 29, 2007). One of the JCARR is quoted as basing his vote on the lack of data about the cost of the rule change on government employers. The OCRC has regularly argued that the proposed rule only clarified existing regulations which already require that employers (of four or more employees) provide a reasonable period of maternity leave. However, the proposed rule actually went further than that in also requiring, for instance, mandatory light duty assignments for pregnant employees even if light duty was not provided for similarly situated male employees disabled by a non-work-related accident (i.e., non-workers compensation). Rather, if the employer had a workers compensation light duty program, it was required by the proposed OCRC rules to similarly provide light duty for pregnant employees. Although the OCRC is likely to try again in a few months, for now Ohio employers need not revise their maternity leave policies to reflect the OCRC's proposed rule.

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. Readers should not act upon this information without legal advice. If you have any questions about anything you have read, you should consult with an attorney.