Basic ADA mistake leads to $2.2 Million Settlement
A recent settlement between the EEOC and JPMorgan Chase & Co. illustrates some basic points about the Americans with Disabilities Act (ADA) in the context of one of the most common — and difficult — situations: a lengthy employee medical leave of absence.
In this case, Morgan’s Bank One Corporation had the following policy:
- Employees who returned from short-term disability leave within six months were returned to their jobs.
- Employees who required more than six months of disability leave were not guaranteed to return to their previous position. Rather, if their position had been filled, they were terminated if they were unable to find other positions within the company within thirty days of being released to return to work.
The problem with this policy is that the EEOC took the position that it violated the ADA’s requirement “that employers individually assess whether or not additional leave will assist employees with disabilities in returning to work without placing an undue hardship on the company.”
In other words, the EEOC challenge was based on the rigidity of the policy. The EEOC’s view is that the law requires that each employee’s situation be considered individually. If needed and feasible, additional leave time may be required, as well as other accommodations such as placement in an alternative position.
The EEOC said:
Everyone knows that employees on leave may be able to return to work at some point. Being open to the possibility that individuals with disabilities may need a little extra time is a win-win for employers. Employees will appreciate the individualized consideration, and employers will be able to retain seasoned, trained employees.
Source:
EEOC Press Release: EEOC and Chase Reach $2.2 Million Settlement In Disability Discrimination Claim
Additional Information:
EEOC: “Facts About the Family and Medical Leave Act, the Americans with Disabilities Act, and Title VII of the Civil Rights Act of 1964,” explaining:
Under the ADA, the employee is entitled to return to the same job unless the employer demonstrates that holding the job open would impose an undue hardship.
In some instances, an employee may request more leave under the ADA even after the employer has communicated that it cannot hold the employee’s job open any longer (i.e., there is undue hardship). In this situation, the ADA-covered employer must see if it has a vacant, equivalent position for which the employee is qualified and to which the employee can be reassigned without undue hardship to continue his/her leave. If an equivalent position is not available, the employer must look for a vacant position at a lower level. Continued acommodation is not required if a vacant position at a lower level is also unavailable.
In other instances, an employer may hold the original position open, and the employee may want to return to work, but may be unable to perform an essential function of the original position even with reasonable accommodation. Under the ADA, the employer must then consider reassignment, first to a vacant equivalent position for which the individual is qualified and, if one is unavailable, to a vacant position at a lower level. Further accommodation is not required if a vacant position at a lower level is also unavailable.
I just don’t get this one. The EEOC’s own “Enforcement Guidance: Reasonable Accommodation and Undue Hardship Under the Americans with Disabilities Act,” at para. 24, states:
Example D: An employer is seeking a reassignment for an employee with a disability. There are no vacant positions today, but the employer has just learned that an employee in an equivalent position plans to retire in six months. Although the employer knows that the employee with a disability is qualified for this position, the employer does not have to offer this position to her because six months is beyond a “reasonable amount of time.” (If, six months from now, the employer decides to advertise the position, it must allow the individual to apply for that position and give the application the consideration it deserves.)
(http://www.eeoc.gov/policy/docs/accommodation.html).
Therefore, the EEOC has said in its Guidance that holding a job open more than 6 months is unreasonable. ALso, the ADA only applies to a “qualified individual with a disability”. Someone who cannot show up to work for more than 6 months is not “qualified” since regular attendance is an essential function of virtually all jobs. See Parker v. Sony Pictures Entertainment, Inc., 260 F.3d 100, 111 (2nd Cir. 2001) (upholding jury verdict on ADA failure to accommodate claim for employer that terminated plaintiff who it believed could not return to work after 6 month leave of absence); Fields v. St. Bernard Parish Sch. Bd., 99-3396, 2000 U.S. Dist. LEXIS 15637; 11 Am. Disabilities Cas. (BNA) 1845, at pp. 21-23 (E.D. La. Oct. 19, 2000 (affirming summary judgment on ADA claim of school teacher who was terminated six months after she had stopped working, holding that plaintiff was not a “qualified individual with a disability” within the meaning of the ADA because she did not have ability to appear for work and to complete assigned tasks within a reasonable period of time, which were “essential functions of her employment position.”); Balek v. Hobart Corp., No. 97 C 8130, at p.*7-*8, 1999 U.S. Dist. LEXIS 12938 (N.D. Ill. Aug.17, 1999) (granting summary judgment on plaintiff’s claim that defendant’s policy of discharging employees who were on disability leave for six months constitutes termination because of a disability in violation of the ADA. Defendant’s policy did not distinguish between disabled and non-disabled employees and the policy simply stated hat “employment may be terminated” for “illness or injury beyond 26 weeks of absences.” “Leave policies such as Hobart’s that are uniformly applied do not violate the ADA.” (citing 29 C.F.R. pt. 1630.5 app.)); Cino v. Sikorsky Aircraft, 42 F. Supp. 2d 147, 151 (D. Conn. 1998) (employer not required to make accommodations for employee who failed to report to work for six months; plaintiff’s long history of absenteeism and six month absence rendered him not qualified); Morton v. GTE North, 922 F. Supp. 1169, 1182-83 (N.D. Tex. 1996) (Employer did not violate ADA when, pursuant to policy of terminating any employee requiring more than six-months of short-term disability, it terminated plaintiff. The court granted defendant’s motion for summary judgment and denied plaintiff’s motion, holding that she did not have standing under the ADA because she was not a “qualified individual with a disability.”).
Thank you for the comment. Your citations certainly support my point that this is a common and difficult issue.
It is true that it is by now pretty much “black-letter law” that “regular attendance is an essential function of virtually all jobs.” But blunt application of this rule can be dangerous.
One may be a “qualified individual with a disability” as long as one can perform essential functions with reasonable accommodation. Medical leave may be a reasonable accommodation. This trumps the regular attendance requirement.
Hence the real question, which may require individualized attention: is the individual entitled to additional medical leave as a reasonable accommodation, or would it be an undue hardship?
The EEOC example you’ve quoted is not quite the same situation. Consideration is being given to reassignment, not to extension of medical leave.
The Parker case you cite illustrates how touch-and-go these issues are. Summary judgment was granted, appealed, reversed, the case went to trial, then judgment for defendants was appealed, where it was affirmed, but the defendants’ attorneys’ fee award was reversed. I guess the defendant was left with a sizeable fee bill, not to mention headaches of ongoing litigation for several years.
In Parker, the court described the earlier appeal as concluding that the company “could not avoid ADA liability merely by characterizing its decision to terminate [the plaintiff] as one taken ‘because he was unable to return to work when his six months’ disability leave expired.’” So the case does not support an inflexible six-month rule.
Balek v. Hobart Corp. also is far from the simple affirmation of the employer’s 6-month rule you suggest. To the contrary, the court denied the employer’s summary judgment motion on the reasonable accommodation count, apparently agreeing with the plaintiff in faulting the policy for making “no provision for identifying alternate positions (reassignment) for a disabled employee.”
Bottom line: I stand by my position that it is dangerous to rely on an absolute rule when the statute requires individualized assessment of possible accommodations through an interactive process.
Furthermore, the case that led me to write this post is a red flag warning to employers that the EEOC — and probably by extension plaintiffs’ employment lawyers — will pursue challenges to such inflexible policies.
I prefer the 4th Circuit approach in the unpublished Bankston v. Henderson, 2000 U.S. App. LEXIS 7514 (4th Cir. 2000):
“Bankston apparently believes that leave (not working) constitutes a reasonable accommodation. This simply is not the case, especially here, where a limited-duty job was offered to Bankston but refused . . . “
I’m sure our clients would prefer the approach.
Unfortunately, I think there’s a reason that opinion was not published.
It is extremely short, with no supporting authority and no effort to distinguish the many contrary cases and long-standing contrary position of the EEOC.
Of course, if a limited-duty job that would have been a reasonable accommodation was offered and refused, this is a crucial fact that changes everything, because the right to reasonable accommodation is not the right to the preferred reasonable accommodation.
An employee cannot insist on leave as an accommodation if a limited duty job is available that would be a reasonable accommodation.
Understood, but the line has been followed by federal district courts in VA and eventially, that will be one of the two issues for the Supreme Court. And the EEOC is, as usual with the ADA, wholly ridiculous.
The issues are two-fold, and I’d apprreciate any insight as to how other circuits have dealt with them from anyone.
First, if attendance is an essential function of a job, is leave extended beyond an amount to which an employee is already entitled (FMLA, perhaps accrued sick leave), by definition, an unreasonable accommodation?
Second, when the ADA says that you must be able to perform the essential functions of your job with a reasonable accommodation, does that mean that if the accommodation (leave) can allow you perform the job 6 months in the future, it is required, or does the performance of the essential function refer to the here and now (i.e., a wheelchair ramp, a transfer to a vacant position, an adjustment in schedule that does not affect essential functions, a modification of non-essential duties, etc . . .)?
The EEOC very often prevails; so I’d hesitate to call any of their positions “ridiculous.”
And even if they end up losing, it will cost your client a whole lot more to litigate the issue than to simply agree to allow an employee an additional x months of leave — upon a proper medical showing that this time is likely to allow the employee to recover to the point of being able to do the job again.
As to your first question, that’s where this post started. The reasonable accommodation issue requires individualized consideration, so you can’t just cut leave off at FMLA or sick leave.
The individualized consideration requirement is supported not just by long-standing EEOC positions, but also by statutory language defining undue hardship, which sets forth a multi-factor test.
And the statutory definition of reasonable accomodation, while not expressly mentioning leave, mentions “job restructuring, parttime or modified work schedules . . . and other similar accommodations . . .”
I think a finite medical leave, supported by a qualified medical opinion, is sufficiently like a parttime or modified work schedule. (The modified work schedule is you are not scheduled to work from January 15 through March 1, for example.)
Note my qualifiers. My prior research indicates courts have been much less favorable to employees seeking indefinite leave or lacking sufficient medical support for their request.
See, e.g., Waggoner v. Olin Corp., a 7th Cir. case I worked on (though my name isn’t on it, I researched and wrote most of the briefing). The plaintiff in that case wanted to be able to miss work whenever she didn’t feel well; this conflicted with the need for reasonably reliable attendance.
However, in working on this case, I knew we’d have been in trouble had she instead asked for a finite leave to adjust to her medication, and supported this request with a credible medical recommendation.
McDonalds sells a lot of hmaburgers, but I never hesitate to call their food “crap.” (g) Thanks for your thoughts.
McDonalds also sells “hamburgers.”
Good Article
Thanks for the lively discussion, Jeff. Just to clarify one thing for any of my readers who have made it thus far (other than the correct spelling of “hamburger”), your last comment, “Good Article,” was not a compliment to me and my post above, but a link to a truly good article right on point, which is well worth reading.