October is Disability Awareness Month, which appropriately coincides with a recent Maryland federal court decision that cements the rights of disabled workers and the obligations on an employer to provide reasonable accommodation. U.S. District Court Judge Hollander, in a 65-page opinion in EEOC v. M&T Bank, CV ELH-16-3180 (October 2, 2019), made clear that the ADA is to be broadly construed by requiring extended leave and reassignment without competition as reasonable accommodations.
The Facts
The employee, a branch manager who rose from the ranks of being a teller, had long been diagnosed with cervical insufficiency, which resulted in past miscarriages. After learning that she was pregnant, the manager informed M&T that she needed leave for surgery to assist her in maintaining her pregnancy and then bedrest through childbirth – at least for a seven-month period.
Although the manager exhausted her FMLA leave and her former position was filled, she was not terminated. Per M&T policies, she was terminated only 30 days after she was cleared to return work when she had not been able to find another position. Then, she was given an additional 60 days after that to apply and compete for other M&T jobs as a current employee. However, the manager was not hired for any of the, at least, 12 jobs she applied for.
The EEOC filed suit against M&T, asserting that it violated the ADA by making the manager compete with other employees for job openings. The EEOC argued that the manager should have been reassigned, without competition.
The Preliminary Matters
M&T asserted various arguments trying to get the Maryland federal court to dismiss the claim before it had to resolve this issue. The Bank lost on all of them, and the Court’s analysis of them illustrates the ADA’s expansive scope.
*Record of Being Disabled – Specific Notice Not Required
M&T claimed that the fired manager was not protected by the ADA because she was neither disabled nor had a record of being disabled. The Court disposed of that argument, finding that, it did not have to determine whether the manager was disabled or not, because when she was terminated, she clearly had a record of being disabled. Moreover, the Court found that the manager gave M&T sufficient knowledge of her disability because she told her boss that she had miscarriages in the past, and required a procedure to carry her baby to term. The Court cited ADA regulations and case law that provide that an individual may have a “record of” being disabled and thus be protected under the “record of” prong of the statute, even if a covered entity does not specifically know details about the record. A worker is not required to give medical documentation to an employer to trigger ADA protections.
*Failure to Accommodate – Intent Not Required
Next, M&T argued it could not have violated the ADA because it had no intent to discriminate against the manager. Rather, its policies required that she be terminated when she could not find another job within the specified time period. This argument too was not successful. The Court held that, because the manager was asserting a failure to accommodate claim, she did not have to show that the employer acted with a discriminatory motive. The Court stated that the “denial of a reasonable accommodation alone is discrimination.”
*Failure To Accommodate – Required Even If Not Currently Disabled
Then, M&T argued that the manager failed to make a failure to accommodate claim because she was fully recovered when terminated and had no medical need for an accommodation. M&T lost here too, with the Court referring to the ADA regulation which provides that the duty to accommodate covers an employee if an accommodation is needed and relates to the past disability. The Court noted that the accommodation for reassignment was both needed and the immediate result of her disability-induced leave.
The Big Take-Aways
Judge Hollander, relying on governing regulations and applicable case law set forth a clear marker that an employer must consider extended leave and reassignment to another position when returning from leave as reasonable accommodations.
*Extended Leave As Reasonable Accommodation
Judge Hollander boldly rejected the Seventh Circuit Court of Appeals’ recent ruling that extended leave was a per se unreasonable accommodation, relying on Fourth Circuit precedent that a leave request is not unreasonable so long as it, “(a) is for a limited, finite period of time; (b) consists of accrued paid leave or unpaid leave; and (c) is shown to be likely to achieve a level of success that will enable the individual to perform the essential functions of the job in question.” The manager’s request met that criteria because (a) she told the Bank she could return to work without restrictions after childbirth; (b) she was on paid and/or unpaid leave; and (c) there was no dispute she could perform the essential functions of the manager job once returned to the job.
Further, the Court found that the duty to accommodate did not end when M&T filled the manager’s former position. M&T was required to consider additional leave as a reasonable accommodation because the duty to provide accommodation continues and does not end with just one attempt.
Because M&T did not invoke the “undue hardship” defense, the Court did not have to address that issue. However, the Court noted that M&T’s generous leave policy would undermine any hardship defense.
*Reassignment Without Competition As Reasonable Accommodation
After deciding that extended leave can be a reasonable accommodation, the Court was then called upon to decide whether M&T was required to reassign the manager to another position without having to compete with other internal candidates. M&T argued that requiring reassignment without competition was tantamount to unlawful affirmative action, citing several cases. The Court disagreed, first relying on the “plain reading” of the ADA which, in relevant part, states that reasonable accommodation includes, “reassignment to a vacant position.” 29 U.S.C. § 12111(9). Therefore, the Court concluded that, under the ADA’s plain meaning, when there is a “vacant position” and a disabled employee is “qualified” for that position, reassignment is a “reasonable accommodation”.
Second, the Court held that the ADA imposes no requirement that the disabled employee seeking reassignment has to be the “most qualified”. The Court insightfully remarked that a best-qualified hurdle to reassignment as an accommodation would render reassignment to “second class” status, observing that no other possible accommodation, such as a modified work schedule, allows a better-qualified worker to displace the disabled employee seeking the accommodation.
If you are disabled and feel your rights may have been violated by an employer because of your disability, the attorneys at Lebau & Neuworth are highly experienced with such cases and may be able to assist you. Contact us at (410) 296-3030 or lebauneuworth.com/contact-us.
