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Tag: eleventh circuit

How Long Is Too Long: Leave of Absence Under the ADA

April 20, 2018

Can finite leave of absence of more than one month can be a reasonable accommodation?

Federal circuit courts have rendered conflicting decisions regarding how much leave is reasonable under the Americans with Disabilities Act (“ADA”). Although given the opportunity to settle the dispute, earlier this month the U.S. Supreme Court declined to review a decision by the Seventh Circuit Court of Appeals holding that a multi-month leave of absence is beyond the scope of a reasonable accommodation under the ADA.

The Seventh Circuit had issued two decisions holding that even if the employee had a disability and an essential requirement of the job was impaired by the disability, the employee was not a qualified individual entitled to ADA protections on the reasoning that the accommodation sought (a multi-month leave) would not help the employee do the job, but would keep the employee from performing job functions altogether.

Ultimately the Seventh Circuit found that while the ADA may require brief periods of medical leave, such as days or even weeks, multiple month long periods of leave are not required under the ADA. The Court stated: “…not working is not a means to perform the job’s essential functions…”.

The Eleventh Circuit (in which the State of Georgia is located) is of the same opinion.

While it seems all appeals courts, and even the Equal Employment Opportunity Commission (“EEOC”), agree that indefinite leave is never a requirement, the EEOC disagrees with the Courts in that it has stated that placing a limit on the amount of disability leave to which an employee is entitled is a clear violation of the ADA.

Given the EEOC’s opinion on the issue, Georgia employers are not advised to take the position of rigidity with regards to how much leave is reasonable. Rather, employers are encouraged engage in the interactive process, consider each case individually, and err on the side of caution until further notice from SCOTUS.

Protected Status + Adverse Employment Action = Discrimination?

April 14, 2018

Often employees are convinced they are victims of discrimination at the hands of employers, through its management or supervisory staff. Often, certain issues are also clear including the employee’s membership in a protected category: Black, female, Muslim, pregnant, for instance, and the employee having experienced a specific adverse employment decision such as dismissal, failure to promote, under compensation, etc. However, it is rarely ever crystal clear that an employee can link the protected category to the adverse decision. Essentially, the employee must clearly answer the question: why, exactly, is this happening to me?

A recent decision from the Eleventh Circuit Court of Appeals which applies to Georgia, Florida and Alabama gives us a good example of the everyday behaviors at the workplace capable of answering this question: “why”.

In EEOC v Exel, the Court upheld a jury verdict awarding back pay on the finding that an employer’s policy of hiring current employees over external candidates was pretextual for sex discrimination. First, the Court accepted evidence that the policy was not mandatory nor was it uniformly applied. Thus, even though neutral on its face, the policy could be bypasssed and used as a cover for other nefarious hiring decisions. Next, the Court identified such nefarious bias (in this case it was against a woman), in the following actions of the hiring manager:

  • “limited his contact with pretty much all the females in [the] office”

  • asked another to “manage the ladies in the office.”

  • was “standoffish” with female employees

  • treated female employees differently than male employees

  • would come into work in the morning and “go straight to his office..”

  • “…wouldn’t speak to any of [the female employees].”

  • stated several times “that he would never put a woman in a management position”

The Court found this evidence is to be “sufficient to tie “generalized discriminatory behavior to the specific employment decision at issue.””

For employers, this case warns of the use of a preferential policy, even though apparently neutral, could be problematic in its day-to-day application.

For employees who think they are being discriminated against, this case gives an example of the sort of evidence required to be successful at trial.