With telework as a reasonable accommodation under the ADA in the air as we await anxiously the Sixth Circuit’s en banc decision in EEOC v. Ford Motor Company, a recent decision concerning the EEOC’s failure to provide telework as a reasonable accommodation got my attention. Miles’ law comes to mind.
Named for a chief of the Bureau of the Budget in the 1940’s, the “law” is based on Miles’ observation about an employee’s change in perspective when he went from a position charged with reviewing budgets to a position in an agency whose budgets were reviewed. “Where you stand depends on where you sit,” Miles observed.
In the recent case, the EEOC denied an EEOC employee’s request to telework as an accommodation for her medical condition. The EEOC argued that it would be an undue hardship to grant the request because the plaintiff, a newly-hired analyst, “needed to be in the office to receive assignments and on-the-job training” and needed “to review onsite files that could not be accessed remotely.” The plaintiff argued that there was no formal training for her position, that she had already been trained, and that she could have done her work remotely with technology and the assistance of others in the office. The court denied the EEOC’s motion for summary judgment on the telework claim, finding that there were factual issues about whether telework was a reasonable accommodation. Buie v. Jacqueline Berrien et al (D.D.C., March 27, 2015).
In the Ford Motor Company case, the EEOC challenged the company’s decision that it would be an undue hardship to allow a resale buyer to work at home for up to four days per week. The company’s managers argued that the buyer’s being at work was essential “because face-to-face interactions facilitate group problem-solving.”
Which raises the obvious question: is the EEOC’s view of telework as a reasonable accommodation the same whether it is a plaintiff or a defendant? Or, does the counsel table at which it sits determine where it stands?