EEOC Focusing on Telecommuting as a Reasonable Accommodation
The EEOC is heralding a recent decision from the United States Court of Appeals for the Sixth Circuit, Equal Opportunity Employment Commission v. Ford Motor Co., a case in which the agency brought suit on behalf of a Ford employee who alleged she was terminated in retaliation for filing a charge of discrimination with the EEOC. In her charge, the employee alleged Ford violated the Americans with Disabilities Act (“ADA”) by not allowing her to telecommute to work. The district court granted Ford’s motion for summary judgment, but, in a 2-to-1 decision, the Sixth Circuit reversed, finding that the EEOC had presented evidence sufficient to survive summary judgment that (a) by requesting to telecommute the employee had sought a reasonable accommodation for her disability and (b) the alternative accommodations offered by the company were insufficient. Of concern to employers is the little weight given by the majority opinion to the employer’s business judgment that the employee’s presence in the workplace was an essential function of her job.
Jane Harris was employed by Ford as a resale steel buyer. She suffered from irritable bowel syndrome (“IBS”) the symptoms of which included fecal incontinence. In response to attendance problems caused by the IBS, her supervisor allowed her to work on a flex-time telecommuting schedule on a trial basis. The supervisor considered the trial unsuccessful because Harris was unable to establish regular and consistent work hours. Although Harris worked from home after “core business hours” to make up for her absences, she made mistakes and missed deadlines because she could not immediately access suppliers. Harris made a formal request to telecommute four days per week on an as needed basis. Ford permitted other resale buyers to telecommute one or two days per week on a predictable schedule. But the company determined that the position was not suitable to telecommuting up to four days per week on an unpredictable schedule because, although the position involved “some individual tasks . . . ‘the essence of the job was group problem-solving, which required that a buyer be available to interact with members of the resale team, suppliers and others in the Ford system when problems arose.’ Ford managers made the business judgment that such meetings were most effectively handled face-to-face, and that email or teleconferencing was an insufficient substitute for in-person team problem-solving.” Harris rejected alternative accommodations offered by the company, such as moving her cubicle closer to the restrooms or seeking another job within the company more suitable to telecommuting. Thereafter, Harris filed a charge with the EEOC based on the company’s failure to agree to her requested accommodation. The company continued to be dissatisfied with her performance and placed her on a performance enhancement plan. After the company determined that Harris had failed to meet any objectives of the plan, it terminated her employment.
The EEOC brought suit on behalf of Harris, alleging that Ford failed to accommodate her disability by not permitting her to telecommute and terminated her in retaliation for filing a charge of discrimination with the agency. Relying on precedent, the district court granted Ford’s motion for summary judgment, declining to second-guess Ford’s business judgment that permitting Harris to telecommute was not a reasonable accommodation for her position.
The Case in the Sixth Circuit
The Sixth Circuit majority concluded that Ford was not entitled to summary judgment because the EEOC had raised a genuine issue of fact as to whether by requesting to telecommute, Harris had sought a reasonable accommodation. The majority conceded that for many positions attendance at the workplace is undoubtedly essential, but ruled that attendance at the employer’s workplace can no longer be assumed to mean at the employer’s physical location. Seeking to distance the case before it from earlier decisions, the majority reasoned “the law must respond to the advance of technology in the employment context as it has in other areas of modern life and recognize that the workplace is anywhere that the employee can perform her job duties.” According to the majority, the EEOC’s arguments about the availability of teleconferencing raised a jury issue about the importance Ford placed on in-person team problem solving. The majority also concluded that the EEOC had raised a jury issue as to whether Harris’ disability prevented her from timely meetings with steel suppliers, given Harris’ assertion that she could reschedule such meetings that fell at inconvenient times. In addition, the majority also rejected the alternative accommodations proposed by the company. In the majority’s view, proposing to find Harris a position that would permit her to telecommute was not a reasonable accommodation because there was no guarantee such a position could be found and that Ford had not demonstrated that permitting Harris to telecommute would pose an undue hardship. The majority also cited to Harris’ testimony that providing her with a cubicle closer to the restrooms would be an inadequate accommodation given the severity of her IBS symptoms.
The dissenting opinion criticized the majority for failing to follow precedent that (1) Harris was unqualified for her position in light of Ford’s evidence that attendance was an essential function of the position and that Harris’ absence created a strain on coworkers and (2) excessive absenteeism renders an individual unqualified under the ADA except for the “unusual case” in which the employee can effectively perform all work-related duties at home. The dissent maintained that Ford had presented “overwhelming evidence to support its business judgment that impromptu meetings and problem-solving with the resale buyer team were most effectively handled face-to-face.” In the dissent’s view, the majority had improperly acted as “a super personnel department” by substituting its own judgment as to which positions require face-to-face interactions and which do not. The dissent was not persuaded by the majority’s “technology has advanced” argument, noting that e-mail, computers and teleconferencing had all been available when the court had issued its prior opinions stressing the importance of attendance at the workplace. The dissent also expressed concern that Ford’s policy permitting telecommuting in certain circumstances was being used against it by the majority and the EEOC such that in the future employers would feel compelled to permit all employees to take advantage of such a policy, even under unequal circumstances. Finally, the dissent disagreed with the majority’s view of the accommodation offered by Ford of providing Harris with an alternative position that would be amendable to telecommuting. In the dissent’s view, that no specific position had been identified was not material, given that Harris rejected the concept of a reassignment out of hand before a position could be located. The dissent argued that given Harris’ flat out rejection, the company’s proposed accommodation could not be deemed unreasonable.
The troubling aspect of the majority opinion is the short shrift it gave to the employer’s business judgment that predictable attendance and face-to-face meetings with team members and suppliers were essential requirements for the resale buyer position. The evidence that Ford proffered in support of its position was substantial and based on the company’s first-hand experience with the position. That evidence was not seriously challenged by the majority or by the EEOC. To permit a jury to decide that these requirements are not essential functions of the job based on the employee’s (or the EEOC’s) unsubstantiated belief that the job can be successfully performed without those requirements is clearly a departure from the deference that courts up to now have generally accorded the employer’s business judgment. Whether the Sixth Circuit’s views presage a trend towards a diminishing of that deference remains to be seen.
In any event, employers should be careful, especially in light of the EEOC’s interest in the issue, not to reject out of hand accommodation requests involving telecommuting. As with any request by a disabled employee for an accommodation, the employer must engage the employee in the “interactive process” to attempt to arrive at an accommodation that is satisfactory to all parties.
For answers to any questions regarding this blog or with regard to accommodations for disabled employees generally, please feel free to contact an attorney in the Gibbons Employment & Labor Law Department.