On April 22, 2014, in EEOC v. Ford Motor Co, Case No. 12-2484, the United States Court of Appeals for the Sixth Circuit in an appeal from the Eastern District of Michigan at Ann Arbor ruled in a 2-1 decision that reversed summary judgment to the employer, Ford, finding that employee’s telecommuting request that had been denied was potential discrimination and that the retaliation claims were also viable under the Americans with Disabilities Act.
The EEOC has long provided in its guidance that telecommuting or working from home can, in some instances, be a reasonable accommodation under the ADA. This guidance is not unfettered; however, as such accommodations are not required if it would cause an undue hardship or if the essential functions of the job can only be performed in the workplace.
In EEOC vs. Ford Motor Co., the complainant, Ms. Harris was a resale buyer at Ford, suffering from IBS known as irritable bowel syndrome. Ms. Harris was terminated following a long history of absences associated with her IBS symptoms, poor performance and even poorer workplace interpersonal behaviors. Having exhausted her FMLA leave, Ms. Harris requested that she be allowed to work from home up to four days per week. After engaging in the interactive process, Ford determined that Ms. Harris’ job could not be done from home. Ford suggested that Ms. Harris consider two other alternatives as reasonable accommodations, having her cubicle moved closer to the restrooms, or taking another position at Ford that would be conducive to working from home. Ms. Harris refused both options. She also claimed that she was being retaliated against by her mangers for her absences, but never made a formal complaint and Ford did not complete an investigation. Ms. Harris filed an EEOC charge of discrimination alleging failure to accommodate after her request to work up to four days from home was refused. Thereafter, in Ms. Harris’ next performance review she was ranked as a Lower Achiever due to her poor performance, and disruptive workplace behaviors, and was eventually put on a performance improvement plan. After having failed to achieve even a single requirement on the performance improvement plan, Ms. Harris’ employment was terminated. She alleged the foregoing was all in retaliation for having filed an EEOC Charge, and the lawsuit ensued.
Failure to Accommodate
Under the ADA an employer may not “discriminate against a qualified individual on the basis of disability in regard to job application procedures, the hiring, advancement, or discharge of employees, employee compensation, job training, and any other terms, conditions, and privileges of employment.” 42 U.S.C. § 12112(a). Failure to make reasonable accommodations of known physical or mental limitations of an otherwise qualified individual with a disability is a form of discrimination under the ADA, unless such accommodation would impose an undue hardship on the employer’s business operations.Id.
As to Ms. Harris’ failure to accommodate claims, the 6th Circuit Court of Appeals found that she was a qualified individual with a disability if physical attendance at the worksite was not considered. Slip Op. at 9. Thus, the burden shifted to Ford to prove that attendance at the workplace was an “essential function” of Ms. Harris’ position. Id. The court found Ford was unable to sustain this burden. While noting a long history of case precedent that references regular and predictable attendance as an essential function of most jobs; however, the majority found that those cases were premised on the “workplace” being the physical location provided by the employer. Id. at 9-10. The majority noted that technology has expanded the traditional brick and mortar employment concepts because now many employees are able to work remotely. Id. at 10. Thus, attendance is no longer premised at being at the employer’s physical location. Id. The court said the question then becomes not whether attendance is an essential function, but rather if physical presence was an essential function. Id. The court considered the following factors as guideposts in making this determination, (1) written job descriptions, (2) business judgment of the employer, (3) amount of time spent performing the function, (4) the work experience of past and present employees in the same or similar position. Id. To this end, the court said that Ford had not carried its burden showing that physical presence was an essential function, and thus reversed the trial court’s summary judgment ruling in favor of Ford. Id. at 19.
The ADA prohibits discrimination “against any individual because such individual has opposed any act or practice made unlawful by [the ADA] or because such individual made a charge . . . under the [ADA].” 42 U.S.C. § 12203(a). The court noted Ms. Harris’ action in filing a charge of discrimination was “protective activity” under the ADA. Slip Op. at 19. Subsequently her poor performance reviews, performance improvement plans and termination were all adverse employment actions. Id. Ford argued that its decisions were legitimate and non-discriminatory; however, the court found that viewed in the light most favorable to Ms. Harris, a reasonable jury could infer that the negative evaluation, performance improvement plans, and termination could have been motivated by unlawful retaliation. Id. at 21. Thus, the court also reversed summary judgment as to the retaliation claim. Id. at 22.
This Sixth Circuit decision in the Seventh Circuit’s backyard will certainly have some effect as persuasive authority going forward. As such, an employer should consider the following:
- Review job descriptions and determine if physical presence in the workplace is an essential function of the job. If it is an essential function, make sure it is noted in the job description.
- Review telecommuting policies and make sure that the policy is clearly defined and evenly applied.
- Contact your labor and employment counsel when engaging in the interactive reasonable accommodation process. All accommodations must be considered on a case-by-case and fact-by-fact basis.
If you have any questions about ADA accommodations and/or other areas of employment law, contact your Hoeppner Wagner & Evans LLP relationship attorney.