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April 10 — Ford Motor Co. didn't violate the Americans with Disabilities Act by not allowing an employee with irritable bowel syndrome to telecommute up to four days a week because “regular and predictable attendance” at the workplace was an essential function of her job, a divided U.S. Court of Appeals for the Sixth Circuit ruled 8-5 on April 10.
The court affirmed a ruling for Ford in a closely watched lawsuit filed by the Equal Employment Opportunity Commission on behalf of Jane Harris, a Ford steel resale buyer who had sought to work from home as an accommodation for her bowel condition.
The EEOC alleged Ford violated the ADA by declining Harris's accommodation request and then unlawfully retaliated by terminating her in September 2009, about four months after she had filed an EEOC charge.
But the EEOC can't show Harris was a “qualified” individual with a disability able to perform all the essential functions of her job with reasonable accommodation, the Sixth Circuit said.
The evidence indicates the steel resale buyer position was an interactive job requiring an employee's on-site presence, the court said. It found Harris's proposed accommodation of working from home, as needed, up to four days a week would prevent her from meeting the essential job function of regular and predictable presence in the workplace.
“The record shows that Harris cannot regularly and predictably attend the workplace—an essential function, and a prerequisite to other essential functions—even with the past reasonable accommodations of telecommuting trials and specialized plans to improve her attendance,” Judge David W. McKeague wrote for the majority.
The EEOC also failed to raise a jury issue of ADA retaliation regarding Harris's termination because she had a history of poor performance predating her EEOC charge and failed to meet the goals of a performance improvement plan, the court said.
The EEOC's position that an employer must allow an open-ended telecommuting arrangement “would cause practical harm to private employers,” the court said.
“[I]f the EEOC's position carries the day, once an employer allows one person the ability to telecommute on a limited basis, it must allow all people with a disability to telecommute on an unpredictable basis up to 80% of the week (or else face trial),” the appeals court said. “That's 180-degrees backward. It encourages—indeed requires—employers to shut down predictable and limited telecommuting as an accommodation for any employee.”
The “practical effect” of adopting the EEOC's view would be “companies would tighten telecommuting policies to avoid liability, and countless employees who benefit from generous telecommuting policies would suffer,” the court said. “A protective tool becomes a weapon if used unwisely; and telecommuting should not be a weapon.”
In dissent, Judge Karen Nelson Moore said the majority overstates both the breadth of Harris's accommodation request and the dangers that might befall employers if the court allows the EEOC's claims to go to trial.
Harris's request for a telecommuting accommodation tracked the language in Ford's written policy, which allowed “one to four days” of telework each week, the dissent said. Harris wasn't requesting four days every week, just an option to take up to four days if needed because of an irritable bowel syndrome flare-up, Moore said.
As for the majority's concern a ruling for the EEOC would cause employers to shut down telecommuting, Moore said “providing telework is not just a good deed; sometimes it is legally required under the ADA.”
Moore added, “The majority ignores the myriad other reasons why employers might choose to provide telework to their employees, such as incentivizing individuals to come work for them or reducing the size of the physical workplace.”
The EEOC is reviewing the opinion and considering its options, an agency spokeswoman said April 10.
Ford, meanwhile, applauded the court's decision. “Ford is proud of its diverse and inclusive culture, and goes to great lengths to accommodate employees with disabilities,” the company said in an April 10 statement. “We are pleased that the [appeals court] found that despite Ford’s consistent efforts to accommodate Ms. Harris, her suggested accommodation of unpredictable, ad hoc, telecommuting was not reasonable in light of her job duties.”
The court's ruling that regular and predictable attendance is an essential job function settles the “uncertainty” created by the Sixth Circuit panel decision last year for the EEOC, said Mark Girouard, a management lawyer with Nilan Johnson Lewis in Minneapolis.
By vacating the panel opinion and ruling in Ford's favor, the full Sixth Circuit reconfirmed “a consistent standard” about when physical presence in the workplace is an essential function, Girouard told Bloomberg BNA April 10.
The Sixth Circuit ruling “tracks the decisions of nearly every court that has touched the issue” by finding judges generally should defer to an employer's judgment about when physical attendance is required, he said.
The panel had suggested that because of enhanced technology, an employee's physical presence in the workplace is less critical and employers that deny a telecommuting request risk ADA liability, Girouard said. But the Sixth Circuit affirms that for jobs involving teamwork and face-to-face interaction as key components, regular and predictable attendance on site can be required, he said.
By Kevin McGowan
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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/3.
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