Sixth Circuit Upends EEOC Victory in Telecommuting Case
We previously reported on a decision by a panel of the United States Court of Appeals for the Sixth Circuit in Equal Opportunity Employment Commission v. Ford Motor Co., in which the panel held that the EEOC was entitled to a jury trial on its claim that Ford discharged an employee in violation of the Americans with Disabilities Act (“ADA”) after it denied her request to work from home 4 days per week as an accommodation for her irritable bowel syndrome (“IBS”). In an en banc decision the Sixth Circuit has now reversed the original panel’s decision, concluding that the district court properly granted Ford’s motion for summary judgment on the ADA claim. In so ruling, the Court credited Ford’s business judgment that the employee’s presence in the work place was an essential function of her job, and thus her request to telecommute four days per week was not a request for a reasonable accommodation to which Ford had to accede. The EEOC had heralded the original panel’s decision as a major victory. The Sixth Circuit’s en banc reversal of that decision should be cause for equal celebration by employers.
Jane Harris, who was employed by Ford as a resale steel buyer, suffered from IBS, the symptoms of which included fecal incontinence. Harris’ supervisor allowed her to work a flex-time telecommuting schedule on a trial basis, but considered the trial unsuccessful because Harris was unable to establish regular and consistent work hours. Also, when working from home, Harris made mistakes and missed deadlines because she could not immediately access suppliers. Although Ford permitted other resale buyers to telecommute one or two days per week on a predictable schedule, the company considered the position not suitable for telecommuting up to four days per week on an unpredictable schedule because the essence of the job was group problem-solving, which required a buyer to be available to interact with members of the resale team, suppliers and others at Ford. Harris rejected alternative accommodations offered by the company, including seeking another job within the company more suitable to telecommuting. The company continued to be dissatisfied with Harris’ performance and placed her on a performance enhancement plan. After her supervisors determined that Harris had failed to meet the objectives of the plan, the company terminated her employment.
The EEOC brought suit on behalf of Harris, alleging that Ford: (1) failed to accommodate Harris’ disability by not permitting her requested telecommuting arrangement and (2) terminated her in retaliation for filing a charge of discrimination with the agency.
The Sixth Circuit’s En Banc Decision
The Sixth Circuit began its analysis by observing the ADA itself requires consideration be given to the employer’s judgment about which functions of a job are essential. Specifically, with regard to attendance, the Court noted the “general rule” that “regularly attending work on site is essential to most jobs, especially the interactive ones,” and that for jobs “involving teamwork and a high level of interaction, the employer will require regular and predictable on-site attendance. . . .” The Court further noted that the EEOC’s own regulations and informal guidance were consistent with giving deference to the employer’s judgment as to the need for predictable, on-site attendance. The Court then concluded that the EEOC had presented no evidence that predictable on-site attendance was not an essential function of Harris’ job. The Court discounted Harris’ own testimony on this issue because “[n]either the [ADA] nor the regulations nor the EEOC guidance instructs courts to credit the employee’s opinion about what functions are essential [and] we do not allow employees to define the essential functions of their positions based solely on their personal viewpoint and experience.” The Court rejected the EEOC’s argument that the company’s permitting other resale buyers to telecommute one or two days per week on a predictable basis was evidence that Harris’ request to telecommute 4 days per week on an unpredictable basis was a reasonable accommodation. The Court concluded that the two situations were dissimilar, especially since the employees who were allowed to telecommute 1 or 2 days on a predictable basis were still required to be on site even on their work-at-home days when circumstances required, an arrangement that did not fit Harris’ accommodation request. Finally, the court rejected the EEOC’s contention that advances in technology (video and audio conferencing, computers, e-mail) have made some essential job functions capable of being performed at home. The Court found that, on the record before it, there was no evidence that technological advances had made Harris’ highly interactive job one that could be performed at home. Accordingly, the Court held that predictable, on-site attendance was an essential function of Harris’ job and thus, her request to be relieved of that function was not a request for a reasonable accommodation.
The Court cautioned it was not requiring lower courts to give “blind deference” to an employer’s assertions about essential job functions. But, the Court ruled that an employer is entitled to prevail when its “judgment as to essential job functions – evidenced by the employer’s words, policies, and practices and taking into account all relevant factors – is “job-related, uniformly-enforced, and consistent with business necessity.”
As to the EEOC’s retaliation claim, the Court found that, in the face of the clear evidence of Harris’ poor performance, the EEOC had failed to present evidence sufficient to withstand summary judgment that the company’s reason for terminating Harris was a pretext for terminating her because she had filed a charge of discrimination with the EEOC. The Court further reasoned that a claim of retaliation requires proof of “but for” causation and that, in light of the record of Harris’ poor performance, a jury could not reasonably conclude that Harris’ filing of her discrimination charge was a “but for” cause of her termination.
The Sixth Circuit’s en banc decision strikes the right balance between a disabled employee’s need for a work-related accommodation and an employer’s right to establish essential job functions. An employer’s business judgment as to essential job requirements, based on the employer’s first-hand experience with the job, should be given deference by the courts and should not be discounted merely by an employee’s (or the EEOC’s) unsubstantiated belief that the job can be successfully performed without those requirements. Nonetheless, 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.