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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 summary judgment 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.
Assuming the EEOC made a prima facie case of retaliation, the court said no reasonable jury could find Ford terminated Harris for anything but poor performance.
In dissent, Judge Karen Nelson Moore said the majority violated summary judgment principles by not viewing the evidence in the light most favorable to Harris and by deciding factual disputes a jury should resolve.
“When we apply both standards properly, the EEOC has presented sufficient evidence to dispute whether Harris is a qualified individual, either because physical presence in the workplace is not an essential function of her job or because telework is a reasonable accommodation for her,” the dissent said. “There also is a genuine dispute about whether Ford retaliated against Harris for filing a charge with the EEOC.”
The EEOC is reviewing the opinion and considering its options, an agency spokeswoman said April 10.
The company 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.”
“We are also pleased that the court concluded that there was absolutely no evidence that Ford retaliated against Ms. Harris,” the company said.
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.
Telecommuting has been on “a slow uptick” over the past 10 years as employers field “more and more requests” for flexible working arrangements, later start times and work-at-home options, Girouard said. Employers that wondered if they should curtail or even end their telecommuting options after the Sixth Circuit panel opinion will welcome the en banc decision, 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.
The Sixth Circuit also said even if an employer allows telecommuting to some extent, “that fact shouldn't be used as a sword” against the employer, Girouard said. The decision reaffirms that just because an employer encourages some telecommuting, it doesn't mean the employer must grant all such requests regardless of the job involved, he said.
In ruling for Ford, the Sixth Circuit said the “general rule” that “attending work on-site is essential to most jobs, especially the interactive ones” is consistent with the ADA's text and applicable EEOC regulations.
The EEOC regulations, codified at 29 C.F.R. § 1630.2(n), define essential functions as those that are “fundamental,” such that a job would be “fundamentally altered” if the function were removed, the court said. The EEOC enumerates seven factors for deciding if a function is essential and for many jobs, especially the interactive ones, “all seven point toward finding regular and predictable on-site attendance essential,” the court said.
The EEOC's informal guidance, including a 2005 fact sheet on telework as a reasonable accommodation and a 2011 guide on employer best practices regarding caregivers, “cuts in the same direction,” the court said.
Those agency documents say an employer may refuse a telecommuting request for jobs requiring “face-to-face interaction and coordination” with co-workers, “in-person interaction with outside colleagues, clients or customers” and “immediate access to documents or other information located only in the workplace,” the court noted.
“A sometimes-forgotten guide likewise supports the general rule: common sense,” the court said. “Non-lawyers would readily understand that regular on-site attendance is required for interactive jobs.”
“Better to follow the commonsense notion that non-judges (and, to be fair to judges, our sister circuits) hold: Regular, in-person attendance is an essential function—and a prerequisite to [other] essential functions—of most jobs, especially the interactive ones,” McKeague wrote. “That's the same rule that case law from around the country, the [ADA's] language, its regulations, and the EEOC's guidance all point toward. And it's the controlling one here.”
Resale buyers at Ford purchase raw steel from steel suppliers and resell those materials to auto parts manufacturers called “stampers,” the court recounted. The stampers then supply the finished steel parts to vehicle assemblers.
Ford has consistently required its resale buyers to work in the same building as the stampers and requires all buyers to regularly and predictably attend work on site, the court said. Ford has permitted limited telework by resale buyers, but “even those who telecommute do so only one set day per week and agree in advance to come into work if needed,” the court said.
“On this record, the EEOC cannot show that regularly attending work was merely incidental to Harris's job; it was essential to her job,” the court said.
Harris's proposed accommodation was unreasonable as a matter of law because it would prevent her from meeting the essential function of regular and predictable attendance on site, the court said.
The EEOC argued Harris's own testimony, the other resale buyers' telecommuting experiences and new workplace technologies that permit employees to work remotely raise a jury issue whether regular on-site attendance is essential.
Neither the ADA, the EEOC regulations nor agency guidance requires courts to consider an employee's own testimony about what functions are “essential,” the court said. In any event, her testimony that she could perform a “vast majority” of her job functions off site doesn't mean she could effectively perform those functions without regular, on-site attendance, the court said.
Ford's practice of allowing other resale buyers to telecommute is relevant, the court acknowledged. But the company limited those arrangements to one or two set days a week and the resale buyers agreed in advance they would come to work on their telecommute days if needed, the court said. In contrast, Harris requested up to four days a week at home, not scheduled in advance, and she didn't agree to come in if needed, 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),” McKeague wrote. “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.”
Judges Danny J. Boggs, Alice M. Batchelder, Julia Smith Gibbons, John M. Rogers, Jeffrey S. Sutton and Richard Allen Griffin joined in the majority opinion.
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, Moore wrote in dissent.
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.
Although the majority credits Ford's contention physical attendance every day is essential for a resale buyer, the company allowed other resale buyers to telecommute, undercutting its own argument, the dissent said.
Decisions from other courts that cite teamwork as one reason for requiring physical presence don't foreclose Harris's ADA claim because all involved jobs where the necessary materials or direct clients could be accessed only on site, the dissent said.
“Thus, neither the general case law on physical presence at the worksite nor prior case law on teamwork resolves this case,” Moore wrote. “Ford gave only one reason for why Harris's physical presence at the worksite is an essential function of her job—that the resale buyer position requires a great deal of face-to-face teamwork. The EEOC presented two pieces of evidence that directly contradict this claim. Summary judgment is therefore not appropriate.”
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.” An employee who seeks to telecommute generally must show the employer permits that option to other employees with similar job duties, the dissent said.
“The majority would privilege Ford's overstated perverse-incentives argument at the expense of properly and carefully assessing reasonable-accommodations claims as the ADA and EEOC regulations require,” Moore wrote.
“Finally, I doubt that Ford and other employers would actually limit telework so drastically based on the slight risk that in certain reasonable accommodation cases, the telework agreements of employees with similar job duties might be relevant,” Moore said. “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.”
Judges R. Guy Cole, Eric L. Clay, Helene N. White and Jane Branstetter Stranch joined the dissent.
Gail Coleman and Lorraine Davis of the EEOC in Washington represented the agency. Helgi Walker and Jonathan Bond of Gibson Dunn & Crutcher in Washington represented Ford.
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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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