From Lauren Kuley at Squire Patton Boggs’ Sixth Circuit Appellate Blog:

On April 10, the Sixth Circuit issued a significant decision on telecommuting accommodations for disabled employees. In EEOC v. Ford Motor Co., a divided en banc Sixth Circuit affirmed summary judgment for Ford on claims brought under the Americans with Disabilities Act by the Equal Employment Opportunity Commission. At issue in the case was a telecommuting request from a Ford employee with underlying health problems. The EEOC alleged that Ford: 1) failed to reasonably accommodate the employee, Ms. Harris, by denying her telecommuting request and 2) retaliated against her for raising the issue with the EEOC. Emphasizing the importance of consistent in-person attendance for interactive jobs, the majority held that no genuine issue of material fact remained, and EEOC’s claims failed as a matter of law.

The lynchpin of the court’s ruling was that regular and predictable on-site job attendance was an essential function of Ms. Harris’s job as a resale buyer. Concluding that Ms. Harris’s job was fundamentally interactive, the majority invoked the “general rule” that regularly attending work on-site is essential to most jobs, especially interactive ones. Factors emphasized by the court included Ford’s own assessment of what the job required, Harris’s poor performance, her past failed attempts at telecommuting, and the “ad hoc” terms of her proposed telecommuting schedule. Given that Harris could not regularly and predictably work on-site, the court concluded that she was not qualified as a matter of law to perform the job even with a reasonable accommodation.

Core areas of disagreement between the majority and dissent included how to treat Harris’s and Ford’s respective versions of the job’s “essential functions” and what arrangements would satisfy the job’s interactive requirements in light of changed technology. With respect to this particular job, the majority held that in-person attendance was still necessary. Ford had allowed Harris to try different telecommuting schedules twice in the past, but she had been unable to accomplish her job duties under those arrangements. Declining to credit Harris’s version of the facts, the majority held that an employee’s unsupported testimony that she could perform her job functions from home does not create a genuine issue of material fact precluding summary judgment. The court instead credited Ford’s testimony that it rarely used video conferencing, and that email and phone were insufficient to satisfy the job’s requirements.

The dissent maintained that it should no longer be assumed that teamwork must be done in person in light of technological such as electronic communication. The dissent also contended that the facts must be taken in the light most favorable to the employee at summary judgment and disputed that the court had engaged in a sufficiently factual, case-by-case analysis. In the dissent’s view, the employee’s own declaration created an issue of fact as to whether regularly appearing in person was essential to the job, and Ford’s self-serving assessment was equally open to question. The dissent also disputed the majority’s characterization of the record with respect to what accommodation Harris actually requested, and how similar it was to accommodations made for other workers.

The retaliation claim was subject to similar debate about the content of the record. The majority held that no reasonable jury could find that Ford would have continued to employ Ms. Harris in light of her past failures to perform her job and her inability to perform the essential elements of her job in the future. Ms. Harris received low evaluations (placing her in the bottom 10 percent among her peers) both before and after she filed her complaint, which the majority found undermined her retaliation claim. Citing the timing of her termination four months after the EEOC complaint was filed along with contentious behavior by the supervisor, the dissent disputed that Ford would have fired Ms. Harris when it did but for the EEOC claim. Although the majority noted that the timing of the termination weighed against Ford, it noted that suspicious timing alone is not sufficient to prove discriminatory intent.

This significant ADA decision may make it more difficult for employees to establish that a telecommuting accommodation satisfies teamwork and communication-related job requirements. More broadly, the decision appears to signal a presumption in favor of an employer’s version what constitutes the essential elements of a particular job, particularly where other facts in the record indicate that alternative arrangements have failed in the past.