In a 2014 opinion, Judge Gorsuch concluded that a leave of absence of more than six months was not a “reasonable accommodation” for an employee’s disability. Hwang v. Kan. State Univ., 753 F.3d 1159 (10th Cir. 2014). He therefore ruled that the plaintiff in that case had failed to establish that her employer, a state university, had violated her rights under § 504 of the Rehabilitation Act of 1973, 29 U.S.C. § 794.
That opinion ignored the central purposes of the Rehabilitation Act and of the Americans with Disabilities Act (“ADA”). Congress instructed the courts to use the standards adopted under Title I of the ADA — the employment provisions of that statute — in deciding cases under § 504 of the Rehabilitation Act. 29 U.S.C. § 794(d).
The ADA and § 504 prohibit employers from not making reasonable accommodations to the known physical or mental limitations of an employee or applicant who is otherwise qualified for his or her job. 29 U.S.C. § 12112(b)(5). An employer can avoid liability by demonstrating that the accommodation would impose an undue hardship on the operation of the employer’s business.
Congress made a number of legislative findings when it enacted the ADA. It found, among other things, that “discrimination against individuals with disabilities continue[s] to be a serious and pervasive social problem”; that people with disabilities “occupy an inferior status in our society” and “are severely disadvantaged,” including economically; and that this discrimination “costs the United States billions of dollars in unnecessary expenses resulting from dependency and nonproductivity.” Section 504 of the Rehabilitation Act and Title I of the ADA were enacted to combat that discrimination and to try to prevent disabled persons from being trapped in an endless cycle of poverty.
Prof. Hwang needed to take time off work in order to get treatment for the leukemia. She was able to get six months’ paid leave, some of which was “shared leave” — leave time that other university employees donated to her. She asked for additional leave for the spring semester, promising to return in time for the summer term. But she had not been idle even when receiving chemotherapy. As the district court — the trial court — explained, two substitute teachers covered her classes while she was receiving treatment; she “prepared the substitutes and shared her teaching materials, lesson plans, and syllibi” with them; and she “consulted with the substitutes through phone calls and e-mails while she was hospitalized.”
The university refused to extend her leave, based on a regulation that limited her leave time to six months. That led to the termination of her employment and to her lawsuit.
In an earlier disability discrimination case, Rascon v. U.S. West Communications, Inc., 143 F.3d 1324 (10th Cir. 1998), Judge Gorsuch’s court held or at least implied that a one-year leave of absence could be a reasonable accommodation. Judge Gorsuch cited, but did not follow, that decision. Instead, he concluded that anything more than a six-month leave of absence would not be a reasonable accommodation for Prof. Hwang or to any other employee. He claimed that 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.”
The cases interpreting these statutes have made it clear that an employee is not entitled to the accommodation of his or her choice, if more than one accommodation is possible. Employers are not required to create new jobs for disabled employees, and need not offer indefinite leaves of absence. However, whether a particular accommodation is reasonable, and whether that accommodation would impose an undue hardship on the employer, are highly fact-specific inquiries. Where the facts are in dispute, as they were in this case, the court can and should not decide these questions based only on the documents submitted by the parties, as was done here on a pretrial motion. Instead, those matters can and should be decided by the jury at trial.
Judge Gorsuch told the Senate Judiciary Committee that judges should not be secret legislators. Yet that is exactly what he did in this case. His six-month limit on employer-granted leaves does not appear in either of these statutes. It contravenes the clear Congressional intent that these statutes be interpreted in a way that would eliminate discrimination and make it possible for disabled persons to be productive members of society. He chose, instead, to affirm a decision to fire a cancer survivor solely because her doctor recommended that she not return to work within six months.
There is more to this story. For example, Judge Gorsuch twisted the words of an EEOC compliance document in a way that misrepresented its meaning. But we need not go there. He interpreted a statute, which requires an individualized assessment of the demand of a disabled person’s job and of the ability of that person to perform that job, to impose a blanket rule that prevented an employee from being able to continue performing her job. That is deeply troubling and should be disqualifying for the most important court of law in the United States.