Don't Get Stumped by the 9-Month Bump: A Discussion of the Sixth Circuit's Decision in Mosbey-Meachem v. Memphis Light
Miller & Martin PLLC Alerts | May 08, 2018
[A version of this article appeared in the Tennessee Bar Association's Labor & Employment newsletter on May 4, 2018.]
Ha, ha, you fool! You fell victim to one of the classic blunders! The most famous of which is “never get involved in a land war in Asia…”
Vizzini, “The Princess Bride,” by William Goldman
But only slightly less well-known is this: Never go in against a pregnant labor and employment attorney when failing to consider a reasonable accommodation is on the line!
Vizzini (paraphrased), U.S. Court of Appeals for the Sixth Circuit (paraphrased)
In its recent decision in Mosbey-Meachem v. Memphis Light, Gas & Water Division, 883 F.3d 595 (6th Cir. 2018), the Sixth Circuit Court of Appeals held that working from home was a reasonable accommodation for an employee on bedrest due to pregnancy complications. Distinguishing prior circuit precedent that in-person attendance is an essential function of most jobs, the case explains that in certain circumstances teleworking is a reasonable accommodation under the Americans with Disabilities Act (“ADA”).
The plaintiff, Andrea Mosbey-Meachem, was an in-house labor and employment attorney who had worked for Memphis Light for eight years. After several miscarriages, she became pregnant, but had surgery during her 23rd week of pregnancy after her doctors discovered a problem. Afterwards, her doctors placed her on bedrest for ten weeks. She requested that Memphis Light accommodate her disability by permitting her to work from bed remotely during this period.
Ms. Mosbey-Meachem then worked remotely for the next three weeks without any issues. At that point, though, she received a letter from Memphis Light stating that it was denying her request because it had a policy against teleworking and physical presence was an essential function of her job. Thereafter, she received FMLA sick leave for four weeks and short-term disability for the remainder of the bedrest period. After the ten weeks, she returned to work until her baby was born.
Ms. Mosbey-Meachem sued Memphis Light and included a claim that it had violated the ADA by failing to accommodate her disability. The case went to trial, and the jury found in favor of Ms. Mosbey-Meachem on her ADA claim and awarded her $92,000 in compensatory damages. The district court later granted Ms. Mosbey-Meachem’s request for equitable relief, awarding her $18,184.32 in back pay and the reinstatement of her leave benefits. Memphis Light appealed the district court’s denial of its renewed motion for judgment as a matter of law to the Sixth Circuit.
Takeaway No. 1: Merely Including a Duty in a Job Description Does Not Mean It Is an Essential Function
Ms. Mosbey-Meachem’s job description included taking depositions, conducting pretrial conferences, trying cases in court, but she had never tried a case in court or deposed a witness during her eight years of employment. Because the job description did not match her actual duties, the Sixth Circuit found that a reasonably jury could conclude that she could perform the essential functions of her job remotely for ten weeks.
One key point for employers from this case is that the job duties listed in a job description do not control what is an essential function; rather, the job duties the employee actually performs control. Employers should routinely update job descriptions so that they accurately list the employee’s duties. In many cases, a job description should list such basic requirements as regular in-person attendance and the ability to work extended hours. For Ms. Mosbey-Meachem, though, working at the office was not an essential function, and teleworking was a reasonable accommodation.
Takeaway No. 2: Never Say Never
Prior to Mosbey-Meachem, the Sixth Circuit had held in two other recent cases that in-person attendance is an essential function of most jobs. See Equal Employment Opportunity Comm’n v. Ford Motor Co., 782 F.3d 753, 763-66 (6th Cir. 2015) (“regular on-site attendance” was an essential function of the buyer’s job; technologies such as “email, computers, telephone, and limited video conferencing” were “equally available when courts around the country uniformly held that on-site attendance is essential for interactive jobs”); Williams v. AT&T Mobility Services LLC, 847 F.3d 384, 392 (6th Cir. 2017) (“Regular attendance is especially likely to qualify as an essential job function after this court’s recent en banc holding that ‘[r]egular, in-person attendance is an essential function...of most jobs, especially the interactive ones.’”).
The Sixth Circuit in Mosbey-Meachem distinguished the facts before it from those in Ford and Williams. In Ford, a plaintiff had a history of poor performance and absenteeism, some of which stemmed from irritable bowel syndrome. Williams involved a plaintiff who answered calls at a call center and who sought to work remotely due to anxiety. By contrast, Ms. Mosbey-Meachem had “performed her duties remotely in the past without any attendance issues or decline in work product,” and her job was “not tied to her office desk.” Further, her requested accommodation was only for a limited time, whereas the plaintiffs in Ford and Williams had requested to telework “indefinitely and on an indeterminate schedule.”
The Sixth Circuit stressed that it is a “highly fact specific” exercise to determine what constitutes an essential function, and that although it had previously found that physical presence was an essential function of “most jobs,” it “expressly did not preclude teleworking in all cases.” The Sixth Circuit therefore held that “because the Ford and Williams cases leave open the possibility of teleworking as a reasonable accommodation, particularly for a finite period of time, a jury could have reasonably concluded from the evidence presented at trial that [Ms.] Mosbey-Meachem could perform all the essential functions of her job remotely for ten weeks.”
Takeaway 3: Always Engage in the Interactive Process
Memphis Light had instituted a policy prohibiting attorneys from telecommuting under any circumstances. An employer, however, cannot simply cite its policy to bypass the interactive process.
At trial, evidence was presented that Memphis’s Light’s president had stated “nobody can telecommute,” that he had “said no already,” and that the company’s ADA Committee “understood its orders as ‘staying firm on the telecommuting mandate from [the president]’ that ‘nobody can telecommute...no matter what the circumstances.’” From that evidence, the Sixth Circuit found that the jury could reasonably conclude that Memphis Light “did not actually engage in an interactive process and that its proposed accommodation was not reasonable.”
An employer who receives a request from an employee for an accommodation due to a disability must engage in the interactive process with that employee and should not immediately rule out a request because it violates company policy. It is particularly important to consider temporary deviations from policies to accommodate pregnancy complications or other short-term health issues.
Conclusion and Ultimate Takeaway: Always Be Nice to Pregnant Women – A Rule to Live and Employ By
Perhaps the biggest takeaways from this case are mere common sense: employers should be kind and considerate to all of their employees, but it looks especially bad (to judge and jury, as well as potentially the media) when an employer refuses to accommodate a pregnant woman who has not only been placed on bedrest, but who had just undergone emergency surgery and had previously experienced several miscarriages. A more sympathetic plaintiff may not exist.
Finally, it should be obvious to all employers that they should not refuse to accommodate the disabilities of their in-house lawyers—particularly their in-house labor and employment lawyers—without very careful review. Had Memphis Light merely permitted Ms. Mosbey-Meachem to work from home for the full ten weeks (as she had done without incident for the first three weeks of her bedrest, and as she had previously done for two weeks after a neck surgery), it would have avoided the award of damages and the guilt of having, no doubt, made an already stressful situation for Ms. Mosbey-Meachem that much more stressful.