On April 10, 2015, the Sixth Circuit Court of Appeals issued its long-awaited en banc decision in Equal Employment Opportunity Commission v. Ford Motor Company following a vacated panel decision from April 2014 in which a divided panel had reversed a district court’s summary judgment award in Ford’s favor.
Factual Overview
Jane Harris worked for Ford from April 2003 to September 2009 as a resale buyer, a position in which she purchased steel and resold it to “stampers.” Her duties entailed, among other things, (1) ensuring no gap in steel supply; (2) responding to supply issues such as shortages or changes in specs; and (3) facilitating quality or pricing disputes between the stampers and steel sources. It was undisputed that the resale buyer position was highly interactive and that Ford unequivocally determined that the interaction between the buyer and the suppliers was most effectively performed face to face.
During her employment, Harris had chronic attendance issues because of both personal and medical issues—Harris had irritable bowel syndrome, which contributed to her working sporadically and unpredictably. In an effort to help Harris personally and professionally, Ford allowed Harris two opportunities to telecommute on an ad hoc basis whereby Harris worked four 10-hour days and could telecommute as needed on her work days. Both trials lasted for one to two months but were unsuccessful because Harris was unable to establish regular and consistent work hours and failed to perform the core objectives of her job. The company then tried another telecommuting arrangement, which also failed to improve Harris’s attendance problems or alleviate her symptoms.
In February of 2009, Harris requested to be permitted to telecommute up to four days per week as an accommodation for her irritable bowel syndrome. In April of 2009, company personnel met with Harris, reviewed the responsibilities of the resale buyer position, and discussed with her how and to what extent her tasks could be performed from home. Ford ultimately denied her request to telecommute up to four days per week because it determined that regular, face-to-face interactions with her team and with a number of contacts both inside and outside of Ford was an essential function of her position.
Ford then proposed alternative accommodations, including offering to move her desk close to the restroom and offering assistance in finding another position within Ford that may be more amenable to the type of telecommuting arrangement Harris desired.
Harris rejected these suggestions and offered no other accommodation.
In April of 2009, Harris filed an Equal Employment Opportunity Commission (EEOC) charge against Ford claiming that Ford denied her reasonable accommodation in violation of its obligations under the Americans with Disabilities Act (ADA). In the meantime, her work performance worsened (Ford documented errors concerning incorrect pricing, issues working with others, and continued absences), and Harris’s coworkers complained to Ford about the increased burdens and stress they had experienced due to Harris’s inability to meet her job responsibilities.
In September of 2009, after being placed on a performance improvement plan and failing to meet the requirements of that plan, Harris was discharged. On September 22, 2009, Harris filed a second EEOC charge for retaliation. On August 26, 2011, the EEOC filed suit against Ford for failing to accommodate Harris and for unlawful retaliation in violation of the ADA.
District Court’s Summary Judgment Opinion (September 2012)
The district court granted summary judgment for Ford, emphasizing that courts cannot second-guess employers’ business judgment regarding essential functions. The district court also noted that Harris was not even a “qualified” individual within the meaning of the ADA because she was absent more often than she was at work.
The Sixth Circuit’s 2014 Panel Decision
In November of 2012, the EEOC appealed the case to the Sixth Circuit (which has jurisdiction in Kentucky, Michigan, Ohio, and Tennessee). The Sixth Circuit reversed the district court’s summary judgment award and, in doing so, made several troubling findings. First, the panel found that Harris was qualified for her position “if physical attendance at the worksite is not considered,” and that the company—not Harris—has the burden of proving that “physical presence in the workplace is an ‘essential function’ of the resale buyer position.” The panel also held that, given technological advances, “the ‘workplace’ is anywhere that an employee can perform her job duties,” and, as such, whether attendance on employer’s premises is essential is a “highly fact specific” question. Finally, in response to the district court’s reliance on Ford’s business judgment, the panel stated
Our inquiry does not end simply because Ford has expressed the business judgment that face-to-face interaction is desirable. . . . However, we should not abdicate our responsibility as a court to company personnel boards: While we do not allow plaintiffs to redefine the essential functions of their jobs based on their personal beliefs about job requirements, [] neither should we allow employers to redefine the essential functions of an employee’s position to serve their own interests.
Thus, the Sixth Circuit panel’s decision effectively did the following:
- ignored the employer’s judgment as to which job duties are essential
- disregarded precedent that predictable, in-person attendance is an essential function that employers are entitled to require
- overlooked undisputed evidence that telecommuting was not reasonable in Harris’s situation
- demanded that employers that are in the same situation that Ford was here alter their essential job functions
- alleviated the employee’s need to engage in the interactive process
- discounted the substantial disruptions that occur when an employee’s availability is utterly unpredictable (and thus requiring the rescheduling of both internal meetings and meetings with clients, for example)
- transformed the question of whether a job function is “essential” into a question of fact that will automatically be a jury issue
The Sixth Circuit’s En Banc Decision:
A Framework for Telecommuting Requests Under ADA
The Sixth Circuit granted en banc review, thereby vacating the panel’s decision. The opening line of the Sixth Circuit’s en banc decision sets the tone for its opinion, which applies traditional, long-standing ADA precedent to the situation:
The Americans with Disabilities Act (ADA) requires employers to reasonably accommodate their disabled employees; it does not endow all disabled persons with a job—or a job schedule—of their choosing.
The court engaged in a lengthy discussion of the “essential function” analysis and held that a reasonable jury could not return a verdict for the EEOC on either the ADA accommodation claim or the ADA retaliation claim. In the telecommuting context, the court (relying upon the EEOC’s own 2005 informal guidance, Work at Home/Telework as Reasonable Accommodation) stated that “An employer may refuse a telecommuting request when, among other things, the job requires ‘face-to-face interaction and coordination of work with other employees,’ ‘in-person interaction with outside colleagues, clients, or customers,’ and ‘immediate access to documents or other information located only in the workplace.” The court also discussed “the general rule: common sense,” holding that “[r]egular, in-person attendance is an essential function—and a prerequisite to essential functions—of most jobs, especially the interactive ones.”
And in what will be music to the ears of employers in the Sixth Circuit, the court unequivocally held that “the employee bears the burden of proposing an accommodation that will permit her to effectively perform the essential functions of her job” (emphasis in original). Here,
Harris proposed only one accommodation—one that would exempt her regular and predictable attendance from her resale-buyer job. In failure-to-accommodate claims where the employee requests an “accommodation that exempts her from an essential function,” the essential functions and reasonable accommodation analyses [] run together.
Moreover, in debunking the dissent’s purported sources of genuine disputes of fact, the court made several additional pronouncements confirming adherence to ADA precedent.
First, in response to the EEOC’s argument that Harris’s own testimony that she could perform her job functions from home was sufficient to preclude summary judgment, the court explicitly retorted, “we do not ‘allow employees to define the essential functions of their positions based solely on their personal viewpoint and experience.’ . . . And for good reason: If we did, every failure-to-accommodate claim involving essential functions would go to trial because all employees who request their employer to exempt an essential function think they can work without that essential function.”
Next, although the EEOC pointed to evidence detailing other buyers’ schedules, the court found this evidence unavailing because the other buyers’ schedules were not materially similar to Harris’s. Harris’s co-workers were permitted to work from home one to two days per week on a set schedule and agreed to come into work on set telecommuting days if needed, whereas Harris requested up to four days (not scheduled in advance) and refused to come on-site if needed. The court also cautioned that “telecommuting should not become a weapon” and warned against creating a standard whereby allowing one person the ability to telecommute on a limited basis results in a legal requirement that all disabled individuals can telecommute on an unlimited and unpredictable basis.
Finally, the court addressed the EEOC’s arguments (as well as the panel’s original arguments) concerning advances in technology, stating that there was no evidence of a technological shift or advances that converted the highly interactive job into one that could be performed remotely.
Although the well-written opinion contains several additional important points for employment law practitioners and employers alike, the bottom line is that while telecommuting can be a reasonable accommodation in certain situations, regular and predictable physical presence at a worksite can be an essential function, and the ADA does not require that any employer remove an essential function from a position to accommodate a disabled employee.
According to Jonathan O. Harris, a shareholder in the Nashville office of Ogletree Deakins, “The court’s en banc ruling provided much-needed relief to employers within the Sixth Circuit. Had the panel’s decision stood, employees seemingly would have been entitled to telecommute as a matter of right, irrespective of whether telecommuting was actually feasible in their particular jobs. In this case, Ford went above and beyond what the ADA requires when engaging in the interactive process. Fortunately, the en banc court reversed a ruling that had been a great injustice to the defendant and that had set a terrible precedent for other employers.”
Kelly S. Hughes is a shareholder in the Charlotte office of Ogletree Deakins.
