Why it matters
In a divided opinion, the en banc Sixth Circuit Court of Appeals determined that an employer was not required to offer telecommuting as an accommodation for an employee suffering from irritable bowel syndrome (IBS). The employee filed an Americans with Disabilities Act (ADA) discrimination suit alleging that her employer violated the statute by refusing to allow her to telecommute. The employer moved for summary judgment, arguing that the job at issue required regular face-to-face interaction and that telecommuting was not a reasonable accommodation because the in-person contact was an essential function of the position. A federal court judge granted the motion and a panel of the Sixth Circuit reversed and reinstated the case. But in an 8-to-5 decision, the en banc court reversed again in an employer-friendly decision. “The Americans with Disabilities Act 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 majority wrote. The opinion offers a lot to like for employers, from placing the burden of proposing a reasonable, effective accommodation on the employee to a deferential perspective on what the employer considers to be an essential function of a position. Telecommuting may be a reasonable accommodation in some situations, but the Sixth Circuit opinion provides a framework for handling such requests when in-person presence at the worksite is an essential function.
Jane Harris worked as a resale steel buyer for Ford Motor Company. She also suffered from a severe case of irritable bowel syndrome (IBS) that caused her to soil herself simply when standing up. She asked Ford if she could work from home up to four days a week.
Ford declined Harris’s request. Her position necessitated face-to-face interactions, the company said, and four days at home was not possible for her position. Harris had also tried telecommuting on multiple prior occasions and had been unable to satisfactorily perform her job, the company noted. Ford suggested alternative accommodations (a desk closer to the bathroom, a job that would permit telecommuting) but Harris refused.
After Harris was later terminated for failing to meet certain objectives, she filed a charge of discrimination with the Equal Employment Opportunity Commission (EEOC). The agency then filed suit against Ford, claiming the company violated the Americans with Disabilities Act (ADA) by failing to accommodate Harris’s disability and retaliating against her based on the accommodation request.
The EEOC took the position that Harris was otherwise qualified for her position if Ford eliminated the requirement that she be physically present at the employer’s facilities or allowed a telecommuting option. A panel of the Sixth Circuit agreed, finding that Harris’s physical presence was not an essential requirement of her job and that the telecommuting arrangement would not create an undue hardship for Ford.
In a split decision, the en banc Sixth Circuit reversed, siding with Ford.
Regular and predictable on-site job attendance was an essential function—and a prerequisite to perform other essential functions—of Harris’s job as a resale buyer, the court said, noting that the EEOC’s own guidance permits employers to refuse a telecommuting request when a position requires in-person and face-to-face interactions.
Harris herself said four of her ten primary duties could not be performed at home, and the other resale buyers that Ford allowed to telecommute all did so on a regular and predictable basis, just one set day per week with an agreement to come into the office if necessary.
“It follows that Harris’s up-to-four-days telecommuting proposal—which removed that essential function of her job—was unreasonable,” the majority wrote. “The employee bears the burden of proposing an accommodation that will permit her to effectively perform the essential functions of her job. Harris proposed only one accommodation—one that would exempt her regular and predictable attendance from her resale-buyer job.”
The court rejected the EEOC’s argument that Harris’s own testimony could support the position that on-site attendance was not essential.
“An employee’s unsupported testimony that she could perform her job functions from home does not preclude summary judgment, for it does not create a genuine dispute of fact,” the court wrote. “Neither the statute nor regulations nor EEOC guidance instructs courts to credit the employee’s opinion about what functions are essential. That’s because 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.”
Harris’s proposal was different from the telecommuting schedules permitted to other resale buyers, the court added, and even the EEOC’s appeal to technological advances failed to sway the court.
The majority did note that its opinion should not be read for the proposition that whatever the employer says is essential always becomes essential. “Our ruling does not, in other words, require blind deference to the employer’s stated judgment,” the court said. “But it does require granting summary judgment where an employer’s judgment as to essential job functions—evidenced by the employer’s words, policies, and practices and taking into account all relevant factors—is ‘job-related, uniformly-enforced, and consistent with business necessity.’ That aptly describes Ford’s judgment regarding regular and predictable on-site attendance for resale buyers.”
As in-person interactions were an essential function of her position, Harris’s request to telecommute was therefore unreasonable, the court said.
“[T]he EEOC must prove that Harris is a ‘qualified individual,’ which means she can perform the essential functions of a resale buyer with a reasonable accommodation,” the court wrote. “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. And Harris’s proposed unpredictable, ad hoc telecommuting schedule was not reasonable because it would have removed at least one essential function from her job.”
While the court’s conclusion made it unnecessary to consider whether Ford acted in bad faith in the accommodations discussion with Harris, the majority said Ford the company acted in good faith. The employer met with Harris twice and identified multiple alternative accommodations that she rejected.
Turning to the issue of retaliation, the majority again ruled in favor of the employer.
While timing was on the EEOC’s side, “[n]o reasonable jury could find that Ford terminated Harris for a reason other than poor performance,” the court said. “Harris’s performance and interpersonal issues have been well documented,” and she ranked in the bottom 10 percent of her peer group before she filed her discrimination charge with the EEOC.
“In addition to Harris’s past failing, she admitted that she would not be able to attend work on-site in a regular and predictable manner in the future,” the majority wrote. “And this attendance was an essential element of her job. No reasonable jury could find that Ford—a for-profit corporation—would continue to pay an employee who failed to do her job well in the past, and who, by her own admission, could not perform the essential elements of her job in the future. The EEOC thus cannot demonstrate that Harris’s charge was the but-for cause of Ford’s decision to fire her.”
A dissenting opinion criticized the majority for failing to consider the facts in the light most favorable to Harris, as required by a summary judgment analysis. “A reasonable jury might ultimately agree with Ford, or it might agree with Harris,” the dissent said. “The point is that there is a genuine dispute of material fact that only a jury should resolve.”
To read the opinion in EEOC v. Ford Motor Company, click here.