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Court Says Telecommuting May Be Reasonable Accommodation, Allows EEOC Case to Proceed

Monday, April 28, 2014

By Kevin P. McGowan  

April 22 — A former Ford Motor Co. manager with irritable bowel syndrome fired for allegedly poor performance after the company denied her request to telecommute has triable discrimination and retaliation claims under the Americans with Disabilities Act, a divided U.S. Court of Appeals for the Sixth Circuit ruled April 22.

In a 2-1 decision, the court reversed dismissal of an ADA suit filed by the Equal Employment Opportunity Commission on behalf of Jane Harris, who was terminated as a resale steel buyer in 2009 after Ford denied her request to work from home four days a week and Harris filed an EEOC charge alleging failure to accommodate her disability.

A federal district court in 2012 ruled the EEOC couldn't show Harris was a “qualified” individual with a disability because the proposed accommodation wouldn't allow her to perform the essential functions of her job, including collaboration with her workplace team for which physical presence in the office was a necessity.

But the Sixth Circuit said the EEOC raised a triable issue Harris could perform all the job's essential functions through regular attendance by technological means without causing Ford undue hardship. The EEOC also raised a jury issue that Ford's termination of Harris allegedly for failure to satisfy performance goals was a pretext for unlawful retaliation under the ADA, the appeals court said.

The majority acknowledged Sixth Circuit precedent that regular attendance is an essential function of most jobs and telecommuting is a reasonable accommodation only in unusual cases.

But technological advances have expanded the class of the jobs for which working from home may be reasonable since those earlier cases were decided, the court said. The EEOC presented sufficient evidence for a jury to find Harris could perform her job's essential functions remotely through a predictable telecommuting schedule, the court said.

“The world has changed since the foundational [federal appeals court] opinions regarding physical presence in the workplace were issued: teleconferencing technologies that most people could not have conceived of in the 1990s are now commonplace,” Judge Karen Nelson Moore wrote. “Therefore, we are not persuaded that positions that require a great deal of teamwork are inherently unsuitable to telecommuting arrangements.”

Judge Jeffrey J. Helmick joined in the majority opinion.

In dissent, Judge David W. McKeague said the EEOC failed to cite any relevant new technology that has arisen since the Sixth Circuit last ruled that regular attendance generally is an essential job function and telecommuting is reasonable only in unusual cases.

The court's decision will have an “unfortunate impact” as it probably will result in employers “tightening their telecommuting policies in order to avoid legal liability, and countless employees who benefit from generous telecommuting policies will be adversely affected by the limited flexibility,” the dissent predicted.

EEOC, Employers Split on ADA's Meaning

The EEOC hailed the decision as an appropriate interpretation of the ADA, but a management lawyer called the Sixth Circuit opinion an outlier.

“This is the latest in a series of decisions ensuring individuals with disabilities are provided the opportunity to fully use their talents in the workplace,” EEOC General Counsel P. David Lopez said in an April 22 statement.

“The decision reaffirms the employer's important obligation to provide reasonable accommodation unless [the employer] can show it results in undue hardship,” Lopez said.

In an April 22 statement, Ford expressed disappointment with the decision, which it said conflicts with earlier decisions from the Sixth Circuit and other federal courts. “We are evaluating our options for further review,” Ford said.

The Sixth Circuit “punted” by sending the ADA issue to a jury but in doing so, the majority reached some “very disturbing conclusions” at odds with the act's fundamental principles, said Ann E. Reesman, of Norris Tysse Lampley & Lakis in Washington, D.C., who filed an amicus brief in support of Ford on behalf of the Equal Employment Advisory Council and the U.S. Chamber of Commerce.

The majority apparently is making “an effort to be modern” by citing technology's advance, Reesman told Bloomberg BNA April 22. But the court's statement, for example, that today's workplace is “anywhere that an employee can perform her job duties” goes well beyond the ADA's requirements, Reesman said.

Rather, under the ADA, even after the ADA Amendments Act took effect in 2009, the “bottom line” is the employer generally gets to define a job's essential functions, which may include the location where work is to be performed, Reesman said.

Nothing in the ADA says an employee may define the job's requirements to serve her own interests, Reesman said.

Reesman echoed the dissent's concern employers within the Sixth Circuit, which covers Kentucky, Michigan, Ohio and Tennessee, now will be reluctant to have even limited telecommuting policies for fear of potential ADA liability if they don't allow substantially all employees to work remotely.

Apparently under the Sixth Circuit's view, she said, an employer with a telecommuting policy may be compelled under the ADA to give employees a blank check in requesting to work from home, regardless of their jobs.

But Daniel Kohrman, a senior attorney with the AARP Foundation in Washington, D.C., called the Sixth Circuit's ruling a “modest but important” decision that recognizes the effect of technological advances on workplace issues.

“It reflects—as the court found—the increasing feasibility of telecommuting and thus the growing likelihood that it is ‘reasonable' to require employers to permit it under the ADA,” Kohrman told Bloomberg BNA April 22. “To date, employers virtually have never been required to justify to a jury a decision to prohibit telecommuting for a worker who needs it to do their job.”

Workplace Presence Required, Ford Said

Harris's job as a resale steel buyer meant she served as an intermediary between steel suppliers and “stampers,” the companies that use steel to produce auto parts for Ford, the court recounted.

Ford executives testified the job's essence was “group problem-solving” and that buyers such as Harris must be available to interact with members of the Ford resale team, steel suppliers and others in the production chain when problems arise, the court said.

Harris was a “consistently competent though not perfect” employee for Ford, based on her performance reviews from 2004 to 2008, the court said. Since she joined Ford in 2004, Harris has had irritable bowel syndrome, which causes “fecal incontinence” and led to her taking intermittent leave under the Family and Medical Leave Act, it said.

Harris's absences began to affect her job performance, and her supervisors allowed her to work on a flex-time telecommuting schedule on a trial basis, the court said. But Ford deemed the trial unsuccessful because Harris allegedly was “unable to establish regular and consistent working hours,” it said.

Harris in February 2009 formally asked that she be allowed to telecommute on an as-needed basis as an accommodation for her disability. Ford's telecommuting policy allows employees to work up to four days a week from home or another telecommuting site. The policy states all salaried employees are eligible for telecommuting, but also says such arrangements aren't appropriate for “all jobs, employees, work environments or even managers.”

Ford denied Harris's request, saying her job wasn't suitable for telecommuting. The company suggested alternatives, including moving Harris's cubicle closer to the restroom or seeking another job for Harris within Ford that was more suitable for telecommuting.

But Harris rejected those options and subsequently began complaining her supervisor was harassing her for leave-related absences. She filed an EEOC charge in April 2009. Ford placed Harris on a performance enhancement plan in July 2009 and the following month terminated Harris for failure to meet the performance goals.

Ford Can't Force Alternate Accommodations

The Sixth Circuit said that the EEOC produced sufficient evidence for a jury to find Harris could perform the essential job functions through regular and predictable attendance from home and could engage in the requisite team problem solving through teleconferencing and other means, the court said.

Ford argued that even if Harris's request for a telecommuting arrangement was reasonable, she wasn't “otherwise qualified” under the ADA because she rejected alternative reasonable accommodations offered by the company.

But the court said the EEOC's evidence casts doubt on whether either Ford alternative addresses the problems Harris faced with her irritable bowel syndrome in the workplace. For example, moving Harris closer to an employee restroom is not a solution when merely standing up could cause a bout of incontinence and embarrassing workplace accidents, the court said.

Text of the opinion is available at http://www.bloomberglaw.com/public/document/EEOC_v_Ford_Motor_Company_Docket_No_1202484_6th_Cir_Nov_13_2012_C.

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