Last night, POTUS nominated Judge Neil Gorsuch to the SCOTUS. Employers may be wondering how Judge Gorsuch will interpret the ADA’s reasonable accommodation requirement. There is some guidance from his 2014 opinion, Hwang v. Kansas State University (10th Cir. 2014).  In Hwang, an assistant professor diagnosed with cancer challenged the University’s inflexible leave policy that allowed no more than six months’ leave.   Judge Gorsuch evaluated the employee's Rehabilitation Act claim (which prohibits disability discrimination by recipients of federal funds) and declined to declare the policy unlawful notwithstanding language in an EEOC Guidance manual suggesting that employers “must modify” such a policy.  Judge Gorsuch noted that when read in full context the EEOC Guidance manual stated that such a policy needed to be modified only where an employee can demonstrate that additional leave would be a reasonable accommodation.  The court noted that the EEOC manual also contained language stating expressly “that an employer does not have to retain an employee unable to perform her essential job functions just because another job she can perform will open up then.” The EEOC also specifically said that “six months is beyond a reasonable amount of time.”

An excellent writer, demonstrating a balanced approach. The opinion is beautifully written and the reasoning well thought out. Judge Gorsuch does not display animus toward the employee and, indeed, goes out of his way to express sympathy for her situation, commenting: “By all accounts, Grace Hwang was a good teacher suffering a wretched year.” He also acknowledged that the employee’s situation was “a terrible problem, one in no way of her own making but it’s a problem other forms of social security aim to address” and he suggested that the disability discrimination laws seek “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.”

Individualized analysis of essential functions supportedJudge Gorsuch noted that that reasonable accommodations can include “allowing more flexible hours.” He also supported the concept that employers must engage in individualized analysis to determine the essential functions of a job. In that regard, he suggested that what is a “reasonable” length of a leave of absence may vary depending on the job position, suggesting that taking “extensive time off work may be more problematic, say, for a medical professional who must be accessible in an emergency than for a tax preparer who’s just survived April 15.”  

Inflexible leave policies may be unlawful in some situations. Interestingly, Judge Gorsuch reasoned that there was nothing “inherently discriminatory” about a six month leave policy and that, to the contrary, “in at least one way an inflexible leave policy can serve to protect rather than threaten the rights of the disabled – by ensuring disabled employees’ leave requests aren’t secretly singled out for discrimination treatment, as can happen in a leave system with fewer rules, more discretion and less transparency.” However, Judge Gorsuch made clear that he was not suggesting that inflexible leave policies were “categorically immune to attack” and suggested that policies that provide for “unreasonably short sick leave periods, for example, may not provide accommodation enough for employees who are capable of performing their jobs’ essential functions with a just a little more forgiven absence.” 

No evidence of disparate treatment on the basis of disability discrimination. The employee argued that she was subject to disparate and discriminatory treatment because employees were eligible to receive sabbaticals lasting up to one year. Judge Gorsuch dismissed this argument because she had not alleged facts demonstrating that these other employees were “similarly situated.” In that regard, he said that there was no evidence that the sabbatical-eligible employees included untenured faculty on year-to-year contracts like the employee here or that sabbaticals were given to employees with roughly the same seniority. 

Lessons for Employers? Judge Gorsuch is a careful thinker and writer. While he ruled in favor of the employer here, his reasoning suggests that in another case, with different facts, he may find in favor of an employee. His reference to employers acting “callously” as being the measuring stick for whether or not liability may result is striking. It reinforces my view that the best way for employers to avoid lawsuits and liability is to treat their employees fairly.