Judge_Gorsuch_official_portraitA colleague recently brought to my attention a 2014 employment case written by then-Circuit Judge Gorsuch for a panel of the U.S. Court of Appeals for the 10th Circuit – a particularly interesting opinion that may give us hints as to how Justice Gorsuch may rule in future employment cases before the Supreme Court.

In Hwang v. Kansas State University, an assistant professor was diagnosed with cancer and received a six-month leave of absence. (In the opinion, Judge Gorsuch specifically noted it was a “(paid) leave.” Whether or not it was paid is irrelevant to the legal analysis, but his express mention of payment suggests approval of the employer’s actions as exceeding the norm). Towards the end of the six months, she requested additional leave of apparently another few months. The University, however, had an inflexible policy limiting leave to six months, and it denied her request. The professor then sued, claiming that the University’s inflexible leave policy violated the Rehabilitation Act.

(The Rehabilitation Act, by the way, is the law prohibiting disability discrimination by federally funded entities, like the University. It is a public sector analog to the Americans with Disabilities Act, which prohibits disability discrimination by private employers, and the legal analysis under both laws is essentially the same. Both laws require an employer to provide reasonable accommodations to enable an employee to perform the essential functions of her job, unless the employer can show that the accommodation poses an undue hardship.)

Judge Gorsuch noted that reasonable accommodations are intended to enable employees to work – “not to not work.” And while some amount of leave may be a reasonable accommodation, what is reasonable depends on factors such as the essential duties of the position, the nature and length of the leave sought, and the impact on other employees. Judge Gorsuch then stated:

[I]t’s difficult to conceive how an employee’s absence for six months—an absence in which she could not work from home, part-time, or in any way in any place—could be consistent with discharging the essential functions of most any job in the national economy today. Even if it were, it is difficult to conceive when requiring so much latitude from an employer might qualify as a reasonable accommodation…. The Rehabilitation Act seeks to prevent employers from callously denying reasonable accommodations that permit otherwise qualified disabled persons to work—not to turn employers into safety net providers for those who cannot work.

Next, Judge Gorsuch turned to the professor’s argument that the University’s inflexible leave policy violated the Rehabilitation Act. In support of her position, the professor cited the Equal Employment Opportunity Commission’s Enforcement Guidance: Reasonable Accommodation and Undue Hardship Under the Americans with Disabilities Act, which provides that, “If an employee with a disability needs additional unpaid leave as a reasonable accommodation, the employer must modify its ‘no-fault’ leave policy to provide the employee with the additional leave, unless it can show that: (1) there is another effective accommodation that would enable the person to perform the essential functions of his/her position, or (2) granting additional leave would cause an undue hardship.”

Judge Gorsuch, however, stated that, “[T]he EEOC manual commands our deference only to the extent its reasoning actually proves persuasive.” He noted the quoted language is not particularly persuasive of much and, in fact, later in the same document the EEOC notes that an employer need not retain an employee who is unable to perform her job functions for six months until another job opens up because, as the EEOC says, “six months is beyond a reasonable amount of time.”

As to the inflexibility of the policy, Judge Gorsuch compared it to the inflexible seniority policies at issue in the Supreme Court case of US Airways v. Barnett. In that case, the Supreme Court rejected the argument that such policies violated the ADA, because they “provide[] important employee benefits by creating, and fulfilling, employee expectations of fair, uniform treatment,” introduce “an element of due process,” and limit potential “unfairness in personnel decisions.” Similarly, contended Judge Gorsuch, the leave policy protects the rights of the disabled by ensuring they will not be singled out for discriminatory treatment.

Judge Gorsuch acknowledged that not all inflexible leave policies may be legal – such as where the amount of leave provided is unreasonably short or the policies are not consistently applied. He then concluded, however, “But the leave policy here granted all employees a full six months’ sick leave—more than sufficient to comply with the Act in nearly any case—and Ms. Hwang makes no allegations suggesting unequal enforcement of the policy’s terms.” Thus, in the view of Judge Gorsuch and this panel, a request for leave beyond that provided by the inflexible six-month policy is simply not reasonable.

This holding is particularly significant because the EEOC has expressly asserted the position that the inflexible application of maximum leave policies violate the ADA, and that the law requires employers to consider exceptions to such policies as a reasonable accommodation. In its 2016 resource document on Employer-Provided Leave and the Americans with Disabilities Act, the EEOC states:

The ADA requires that employers make exceptions to their policies, including leave policies, in order to provide a reasonable accommodation. Although employers are allowed to have leave policies that establish the maximum amount of leave an employer will provide or permit, they may have to grant leave beyond this amount as a reasonable accommodation to employees who require it because of a disability, unless the employer can show that doing so will cause an undue hardship.

Example 11: An employer covered under the FMLA grants employees a maximum of 12 weeks of leave per year. An employee uses the full 12 weeks of FMLA leave for her disability but still needs five additional weeks of leave. The employer must provide the additional leave as a reasonable accommodation unless the employer can show that doing so will cause an undue hardship. The Commission takes the position that compliance with the FMLA does not necessarily meet an employer’s obligation under the ADA, and the fact that any additional leave exceeds what is permitted under the FMLA, by itself, is not sufficient to show undue hardship. However, there may be legitimate reasons that establish undue hardship, such as the impact on an employer’s operations from the leave already taken and/or from granting additional leave. Also, the employer may consider whether other reasonable accommodations may enable the employee to return to work sooner than the employee anticipates, as long as those accommodations would be consistent with the employee’s medical needs.

The EEOC has aggressively sought to enforce this position by challenging the inflexible leave policies from many companies and obtaining multi-million dollar settlements. For example, in 2009, the EEOC obtained a $6.2 million settlement from Sears Roebuck, asserting among other things that the inflexible leave policy providing for termination when workers’ compensation leave was exhausted violated the ADA. The EEOC has also sued UPS over its leave policy that requires an”administrative separation” after an employee has been out for 12 months!!!(This case, which was initially filed in 2009, is still ongoing. And there are many, many others (Princeton Healthcare, $1.35 million; Interstate Distributor, $4.85 million; Supervalu, $3.2 million…).

Judge Gorsuch’s opinion, however, suggests that he would not look favorably on the EEOC’s position on this issue. It suggests that Judge Gorsuch will not blindly defer to agency positions, whether the EEOC’s or otherwise. And it also suggests that Judge Gorsuch is willing to take a practical, real-world approach to employment issues (guided by the law, of course)!