Sixth Circuit Rules On Telecommuting As A Reasonable Accommodation Under The ADA

In E.E.O.C. v. Ford Motor Company , 782 F.3d 753 (6th Cir. 2015), a divided en banc panel of the United States Court of Appeals for the Sixth Circuit held that Ford Motor Company did not violate the Americans With Disabilities Act (“ADA”) by denying Jane Harris the opportunity to telecommute on an “as needed basis, up to four days per week” to accommodate her irritable bowel syndrome, even though other employees in Harris’ job classification were able to telecommute.

In Ford Motor Company , Harris worked as a resale buyer, whose job responsibilities included purchasing raw steel from steel suppliers and reselling the steel to parts manufacturers (known as stampers), who in turn supplied the steel parts to vehicle assemblers. The resale buyer’s job was described as “highly interactive.” Interactions occur by email, phone, and in person. Ford described the meetings as “most effectively performed face to face.” To this end, Ford required resale buyers to work in the same building as stampers so they could meet face to face “on a moment’s notice” and determined that “regular and predictable attendance in the workplace” was “essential to being a fully functioning member of the resale team.”

Early in her career, Harris was a high level performer. As time went on, however, Harris’ performance started to wane according to Ford. Harris was rated in the bottom 22% of her peer group in her fourth year, the bottom 10% in her fifth year, and the bottom 10% in her last year with the company. During her final year of employment with the company, Ford described Harris as “not performing the basic functions of her position” because she “lacked interpersonal skills, delivered work late, didn’t show a concern for quality, and failed to properly communicate with suppliers.” Harris also was absent often. During her second to last year with the company, Harris missed an average of 1.5 days of work per week and, during her last year with the company, she was absent more often than she worked. According to Ford, when Harris missed work, her co-workers and supervisors had to pick up the slack, which included performing functions that Harris was unable to perform at home.

Harris’ attendance issues were largely the result of her irritable bowel syndrome. She experienced “uncontrollable diarrhea and fecal incontinence, sometimes so bad that ‘it’ could ‘start[] pouring out of [her]’ at work.” Ford tried to accommodate Harris’ condition. Her first supervisor adjusted her schedule to help establish “regular and predictable attendance.” Under this schedule, Harris would work four 10-hour days and was permitted to “telecommute on an ad hoc basis.” This attempt to accommodate Harris did not work, however, as she “was unable to establish regular and consistent work hours” and failed “to perform the core objectives of the job.” Next, Ford tried its “Workplace Guidelines,” which is a reporting tool designed to help employees with attendance issues related to illness. This attempt at an accommodation also did not work. Then, Ford allowed Harris to telecommute during and after core business hours, but this effort did not succeed either. Harris ultimately asked Ford “to work up to four days per week from home.” Harris thought such an accommodation would be appropriate because her first supervisor had told her that “her job would be appropriate for telecommuting,” Ford had a telecommuting policy, and several of her co-workers telecommuted.

Although resale buyers could telecommute, Ford allowed them to telecommute only one scheduled day per week. Ford limited telecommuting for resale buyers because their job duties required “face-to-face contact” and those who were not “strong performers” and who had “poor time-management skills” were ill-suited for telecommuting. Upon receiving Harris’ request, HR representatives and her supervisor met with Harris, and asked her how she expected to perform her 10 main job responsibilities from home. Harris conceded that she would be unable to perform four of them, including “meeting with suppliers, making price quotes to stampers, and attending some required internal meetings.” Ford ultimately denied Harris’ request, reminding her that four of her main job responsibilities could not be performed from home, four could not be performed from home effectively, and two were not significant enough to support telecommuting. Instead, Ford offered to move her closer to the restroom and look for other positions that were better suited for telecommuting, but Harris declined these offers and alleged that denying her request for an accommodation violated the ADA.

Shortly after her requested accommodation was denied, Harris filed a charge of discrimination with the EEOC and, after being placed on a performance plan, which she did not satisfy, her employment was terminated. The EEOC later filed suit against Ford, alleging discrimination and retaliation, but the district court granted summary judgment to Ford, finding that “‘working from home up to four days per week is not [a] reasonable’ accommodation under the ADA and that “the evidence [did] not cast doubt on Ford’s stated reason for terminating Harris’s employment: poor performance.” The EEOC appealed, and a three judge panel of the Sixth Circuit reversed the district court on both claims. An en banc panel of the Sixth Circuit then reversed the decision of the three judge panel in an 8-5 decision.

The Sixth Circuit started its analysis by holding that “regular and predictable on-site job attendance [is] an essential function (and a prerequisite to perform other essential functions) of Harris’s resale-buyer job.” The Sixth Circuit stated the general rule, “that regularly attending work on-site is essential to most jobs, especially interactive ones” and quoted the Seventh Circuit in explaining that “most jobs require the kind of teamwork, personal interaction, and supervision that simply cannot be had in a home office situation.” The Sixth Circuit then summarized the EEOC regulations and informal guidance and found that they supported the court’s conclusion about on-site attendance being an essential job function. In conducting its analysis, the Sixth Circuit highlighted the deference that is given to an employer’s judgment regarding essential job functions. In citing to the ADA, the Sixth Circuit noted that “[e]ssential functions generally are those that the employer’s ‘judgment’ and ‘written [job] description’ prior to litigation deem essential.” It also cited EEOC regulations that state “the inquiry into essential functions is not intended to second guess an employer’s business judgment with regard to production standards” and employers are not required to lower performance standards, but “that [is] what would happen in many jobs if regular, in-person attendance was not required.”

In turning to Harris’ job, the court found that the “required teamwork, meetings with suppliers and stampers, and on-site ‘availability to participate in . . . face-to-face interactions’ . . . all necessitate a resale buyer’s regular and predictable attendance.” This conclusion was buttressed by the fact that Ford required resale buyers to work in the same building as stampers and implemented a policy that limited resale buyers to one set day of telecommuting per week, but they had to come to the office if needed on the scheduled telecommuting day. In noting that the essential function and reasonable accommodation analyses blend together, the court found that Harris’ proposed accommodation would have exempted her from performing essential functions of the job (i.e., regular on-site attendance) and, thus, was unreasonable.

The court then addressed each of the EEOC’s three main arguments that disputes of material fact existed as to whether regular on-site attendance was essential to Harris’ position. First, the EEOC relied on Harris’ testimony that Harris could perform the essential functions of her job from home. The court rejected this argument because Harris did not testify that she could perform all the essential functions of her job from home or that she could perform them effectively from home, and courts do not “allow employees to define the essential functions of their positions based solely on their personal viewpoint and experience.” Second, the EEOC relied on other employees’ telecommuting schedules to argue that telecommuting was a reasonable accommodation. The court noted that this fact was a legitimate consideration, but it rejected the EEOC’s argument by distinguishing Harris’ proposed telecommuting schedule from the schedules of Harris’ co-workers who telecommuted. In this regard, the court noted that the most any employee was authorized to telecommute was two days per week, and the employee who was permitted to telecommute twice a week actually only telecommuted one day per week. The court also noted that every employee who was authorized to telecommute agreed in advance to come into work on their set telecommuting day if needed. In contrast, Harris sought to telecommute four days per week, would not schedule her telecommuting days in advance, and refused to come on site if needed. In summarizing its rejection of the EEOC’s position, the court stated that allowing one employee to commute on a limited basis does not require employers to permit all employees to telecommute on an unpredictable schedule up to 80% of the week. Third, the EEOC argued that it is “self-evident” that “technology has advanced” enough to allow employees to perform “at least some essential functions” from home. While the court acknowledged this was an accurate statement “in the abstract,” it concluded that there was no record evidence in this case to support the conclusion that Harris’ “highly interactive job” could be “effectively performed at home,” even with Ford’s “fairly limited” use of video conferencing and its more regular use of audio conferencing.

On the one hand, the court’s decision in Ford Motor Company is nothing new, as many courts have held that regular on-site attendance generally can be considered an essential job function. On the other hand, with more and more companies allowing employees to telecommute, the Sixth Circuit’s decision is significant because it determined that by allowing some employees to telecommute an employer will not necessarily be required to allow other employees to telecommute as a reasonable accommodation under the ADA. The court’s decision in this regard illustrates that a determination about telecommuting as a reasonable accommodation under the ADA may require a fact-intensive analysis that considers, among other things, what limits, if any, are placed on telecommuters, the frequency with which employees are permitted to telecommute, and what policies and practices a company implements to support its conclusion that on-site attendance truly is an essential function of a particular job.

If you have any questions regarding this post, please contact Stephen B. Stern at sstern@hwlaw.com or (410) 260-6585 or Andrew M. Kerner at akerner@hwlaw.com or (410) 260-6592.

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