One would have thought that telecommuting as a reasonable accommodation for an employee's disability was a dead letter following the Sixth Circuit's en banc decision in EEOC v. Ford, 782 F.3d 753 (6th Cir. 2015). Not so as shown by the Court's recent and surprising decision in Mosby-Meacham v. Memphis Light, Gas & Water Div.
Andrea Mosby-Meacham began working as an in-house staff attorney for the defendant utility company in 2005; she dealt mainly with employment law issues. In January 2013, Mosby-Meacham developed pregnancy complications that resulted in surgery and being placed on "modified bed rest" for ten weeks, a restriction applicable to "prolonged standing or sitting and from lifting heavy objects." She made an official request for an accommodation for this condition, that "she be permitted to work from a bed either within the hospital or within her home for ten weeks." Her request was denied, although she represented that she could perform her job's essential functions with the requested accommodation. For unexplained reasons, it took the company an additional two weeks to formally notify Mosby-Meacham that her request was denied, by which time she had been working for three weeks while on "modified bed rest" and "no one from MLG&W ever told her to stop working during this time." Mosby-Meacham twice appealed unsuccessfully the denial of her accommodation request, before returning to work after ten weeks on April 1, 2013. She then worked right "up until her baby was born on April 14, 2013."
Mosby-Meacham filed suit, and a jury awarded her $92,000 on her claim of disability discrimination. The trial court, U.S. District Judge John Thomas Fowlkes, Jr., then granted her equitable relief of $18,184.32 in back pay and reinstatement of her leave benefits that she had used during the ten weeks' bed rest.
The employer's principal argument on appeal was that the jury verdict should be set aside, because Mosby-Meacham could not perform her job's essential functions while telecommuting, that her in-person presence in the office was required. This argument failed for the following reasons:
- several MLG&W employees as well as outside counsel who worked with Mosby-Meacham testified that they felt she could perform all essential functions during the 10-week period working from home
- although trying cases in court was listed as an essential function, Mosby-Meacham had never tried a case
- similarly, although taking depositions was listed as an essential function, Mosby-Meacham had never tried a case
- the job description the employer relied on was outdated and did not take into account the technological advances that had changed how Moseby-Meacham did her job
- the employer did not truly engage in an interactive process with Mosby-Meacham and instead invoked a no telecommuting policy even before considering her request
It appears that the employer overestimated the reach of EEOC v Ford, believing that the Sixth Circuit would never endorse telecommuting as a reasonable accommodation, because Mosby-Meacham presented a compelling plaintiff. She had actually telecommuted a few years prior with no problem; even in the time period relevant to this case, she telecommuted for apparently about a month with the employer raising no issue and instead reaping the benefit of her work. When her bed rest was over, she returned to work and worked right up until the birth of her child, an admirable move given that she'd had three prior miscarriages. It probably also helped that she was a lawyer since it made the panel more confident that it understood her job and less concerned about injecting into the workplace in a field and job about which they knew little. Finally, Mosby-Meacham benefitted from a perceptive trial court judge who recognized the limits of EEOC v Ford's reach and did not grant the employer's motion for summary judgment, which many district judges would have done. Credit goes to Mosby-Meachem's lawyers who did a fine job themselves.
