Ford Motor Company hired Jane Harris in 2003 as a resale buyer. Resale buyers act as intermediaries between steel suppliers and companies that use steel to produce parts for Ford. When problems arise, resale buyers engage in group problem-solving, and must be available to interact with members of the resale team, buyers, and others in the Ford system. Ford managers made the business judgment that such meetings are most effectively handled face to face.
Harris was consistently rated as "excellent plus" in her annual performance evaluations, but also received the lowest "contribution assessment" in 2007 and 2008, which placed her in the bottom quartile of employees in her peer group.
Harris suffered from Irritable Bowel Syndrome (IBS), and on particularly bad days could not drive herself to work or stand up from her desk without soiling herself. She began taking intermittent FMLA leave when she experienced severe IBS symptoms, and her absences began to affect her job performance. Harris's supervisor allowed her to work on a flex-time telecommuting schedule on a trial basis in 2005. However, the trial was unsuccessful because Harris did not establish regular and consistent work hours. After that, Harris worked from home on an informal basis on nights and weekends so that she could keep up with her work, but Ford did not approve the remote work or credit Harris with the time spent working during non-"core" hours. When Harris worked nights and weekends, she made mistakes and missed deadlines because she was unable to get in touch with suppliers. When Harris stayed home because of her illness, Ford marked her absent. During the first seven months of 2009, Harris was absent more often than she was present during core business hours.
In February 2009, Harris requested a disability accommodation: permission to telecommute as needed. Ford has a telecommuting policy that allows some employees to telecommute up to four days a week, though it notes the arrangement is not appropriate for all jobs or employees. Harris met with her supervisor and human resources to discuss the request. She maintained that most of her work could be done via computer or telephone. Harris's supervisor expressed a concern about Harris being able to meet with suppliers, to which Harris responded that she could always reschedule meetings that fell at inconvenient times. Ford denied Harris's request.
However, a personnel relations representative suggested alternative accommodations, including moving Harris's cubicle closer to the restroom or finding another job at Ford more suitable for telecommuting. Harris rejected both options.
Harris filed a disability discrimination charge with the Equal Employment Opportunity Commission (EEOC). Approximately three months later, Harris was rated as a "low achiever" and placed on a Performance Enhancement Plan (PEP). At the conclusion of the 30-day PEP period, Harris had not met any of the identified objectives. Ford terminated her employment.
The EEOC filed suit against Ford, alleging that Ford violated the Americans with Disabilities Act (ADA) by failing to accommodate Harris's disability and retaliating against her for filing an EEOC charge. Ford filed a motion for summary judgment as to both claims, which the district court granted. The EEOC appealed, and the Court of Appeals for the Sixth Circuit reversed.
An employer discriminates in violation of the ADA if it does not make reasonable accommodations to the known physical or mental limitations of an otherwise qualified individual with a disability (whether an employee or an applicant), unless the employer can demonstrate that the accommodation would impose an undue hardship on the business's operations.
The plaintiff has the burden of proving she is "otherwise qualified" despite her disability (1) without an accommodation, (2) with an "alleged essential" job requirement eliminated, or (3) with a proposed reasonable accommodation.
The Court of Appeals held that the EEOC presented evidence to establish that Harris was qualified for the position as long as the requirement that she be physically present at Ford facilities was eliminated. The EEOC presented evidence that Harris earned consistently positive performance reviews, and that Ford's only serious criticism related to her frequent IBS-related absences. Absent the attendance issues, Harris had the qualifications necessary to be a resale buyer. Thus, the burden switched to Ford to prove that physical presence at Ford facilities is an essential function of the resale buyer position. While predictable and regular attendance in the workplace is an essential requirement of most jobs, technology has advanced such that attendance at the workplace is no longer synonymous with attendance at the employer's physical location. The law must recognize that a "workplace" is anywhere that an employee can perform her duties. Thus, the Court stated that Ford had to demonstrate that Harris's physical presence at the Ford facilities was essential.
Ford presented evidence that teamwork was integral to the resale buyer position and that one of Harris's coworkers believed she (the coworker) could not perform effectively as a resale buyer if she telecommuted. In Ford's business judgment, Harris's physical presence was an essential function of her position. The Court of Appeals acknowledged this, but noted that Ford allowed other resale buyers to telecommute (albeit on a more limited basis), and that the majority of Harris's communications were done via conference call even when she was physically present at Ford facilities. Thus, although Ford presented "significant evidence" that physical attendance was an essential function of the resale buyer position, the EEOC offered enough evidence to dispute this conclusion.
Alternatively, the Court of Appeals held that the EEOC provided sufficient evidence that Harris was qualified for the resale buyer position with a reasonable accommodation – a telecommuting arrangement. While Harris's 2005 flex-time arrangement was unsuccessful, flex-time scheduling is different than telecommuting. An employer can rely on a telecommuting employee to work during scheduled hours.
Ford argued that Harris's requests to telecommute up to four days a week was unreasonable. The Court of Appeals stated that if Ford thought the request was unreasonable, it should have engaged in the interactive process to identify reasonable alternatives. Further, it could not use Harris's past attendance issues as the basis for denying her requested accommodation because the EEOC presented evidence that her attendance issues were related to her IBS flare-ups. Finally, the Court rejected Ford's argument that Harris was not "otherwise qualified" because she rejected Ford's alternative reasonable accommodations. Moving Harris's cubicle closer to the restroom was not reasonable in light of the nature of Harris's disability (i.e., if she could soil herself by standing up, she could not walk all the way to the restroom). Reassignment to another position should only be considered if accommodation within the employee's current position would pose an undue hardship, and telecommuting provided a reasonable accommodation.
Therefore, because the EEOC provided evidence that Harris was qualified for the resale buyer position with a reasonable accommodation, the burden shifted to Ford to prove that the accommodation posed an undue burden. While setting up a telecommuting workstation would entail some cost to the company, Ford's telecommuting policy states that it will absorb the cost for employees who have been approved to telecommute. Therefore, Ford failed to meet its burden and the EEOC created a triable issue of fact regarding whether Harris could perform all of her duties from a remote location.
The Court then addressed Harris's retaliation claim. A plaintiff must show that she engaged in protected activity, she suffered an adverse employment action, and there was a causal connection between the two. The EEOC presented evidence in the form of temporal proximity: four months after Harris filed an EEOC charge, she was terminated. While the time period was not short enough to establish causation on its own, the EEOC also presented evidence that after Harris filed her complaint, her superior began conducting intimidating one-on-one meetings, held a meeting with all of Harris's coworkers to discuss her attendance problems, and gave her negative performance reviews for the first time.
To rebut this, Ford presented evidence that Harris was consistently rated in the bottom quartile of her peer group, struggled with several of the job duties including interpersonal relations, and failed to meet the objectives of her PEP. Thus, the burden shifted back to Harris to show that Ford's justifications were false. The EEOC argued that Harris's job issues only prompted a negative review after she filed her complaint, thus demonstrating that Ford's reasons for terminating Harris's employment were pretextual. Therefore, the EEOC created a material issue of fact regarding Ford's motivation, and the district court erred when it granted Ford's motion for summary judgment. The Court of Appeals reversed the district court's grant of summary judgment and remanded the case for further proceedings.
Because this case was decided by the Court of Appeals for the Sixth Circuit (which has jurisdiction over the states of Kentucky, Michigan, Ohio, and Tennessee), this opinion is not binding on the Ninth Circuit. However, the Ninth Circuit could view it as persuasive authority if faced with a similar issue.
The Court made the following clarification in its opinion:
"It is important, at this juncture, to clarify that we are not rejecting the long line of precedent recognizing predictable attendance as an essential function of most jobs. Nor are we claiming that, because technology has advanced, most modern jobs are amenable to remote work arrangements. As we discussed above, many jobs continue to require physical presence because the employee must interact directly with people or objects at the worksite."
While this clarification from the Court is somewhat reassuring, it is still foreseeable that the Court's decision inFord Motor Co. may prompt employees to argue that an employee's physical presence/predictable attendance is not an essential function of a job. There are California and Ninth Circuit cases, including Samper v. Providence St. Vincent Medical Center (9th 2012) 675 F.3d 1233, which hold that attendance is an essential job requirement for certain jobs that require working as part of a team, face-to-face interaction with clients or other employees, or working with items or equipment that are on-site.
E.E.O.C. v. Ford Motor Co. (6th Cir. 2014) __F.3d__ [2014 WL 1584674].