“At issue in this case is whether a telecommuting arrangement could be a reasonable accommodation for an employee suffering from a debilitating disability.” The Sixth Circuit, in a 2-1 split opinion, holds that the EEOC is entitled to a trial on behalf of an employee with irritable bowel syndrome (“IBS”) for ADA discrimination and retaliation. The panel majority holds, in the course of its analysis, that a four-day-a-week telecommuting schedule might be considered a reasonable accommodation.
EEOC v. Ford Motor Co., No. 12-2484 (6th Cir. Apr. 22, 2014): Employee Jane Harris worked until 2009 as a resale steel buyer for Ford, charged with making sure that the parts manufacturers suffered no interruption in steel supplies. The position required the employee to use resourcefulness and team-solving skills in the event of an unplanned supply interruption. Harris received generally passing scores on her annual performance evaluations, but was marked down for “disruptive” interpersonal skills and on her “contribution assessment” (a ranking that was not shared with employees).
Owing to her IBS – a medical condition leading to fecal incontinence – Harris often had difficulty commuting to work, or even standing up. Ford permitted Harris to take intermittent FMLA leave when she experienced severe symptoms. It also permitted her to work from home on an informal basis, including during “non-core” evening and weekend hours, although such time was still counted as an absence. (Ford’s position was that Harris was not fully at work during remote days because she was unavailable for team-solving or accessing suppliers.) Importantly, Ford had allowed other employees to also use telecommuting on an occasional basis.
Harris met with her bosses and Ford HR in 2009 to discuss a more formal telecommuting schedule, with Harris reporting to the office one day a week and working remotely the balance of the time. This proposal was turned down because Ford concluded that face-to-face contact with co-workers and suppliers was an essential function of the job. Harris declined the alternative suggestions of having her cubicle moved closer to a washroom, or transferring to an entirely different kind of work at Ford more compatible with telecommuting.
Harris then filed a charge of ADA discrimination with the EEOC. Circumstances deteriorated further, with her boss ordering her to attend stressful one-on-one weekly meetings (where he reportedly harangued her for her absences), lowering her performance evaluation ratings, placing her on a performance improvement plan, and ultimately (with input from the supervisory team) firing her.
The EEOC filed an ADA reasonable-accommodation and retaliation case. The district court granted summary judgment, reasoning that Harris was not a qualified individual with a disability owing to her supposedly excessive absences, and that her termination was prompted by legitimate performance-based shortcomings.
The panel majority reverses. It holds first that the EEOC raised a genuine dispute of material fact about whether regular physical attendance at work was an “essential function” of working as a resale steel buyer. Because Harris otherwise met the qualifications of the job (other than the absenteeism), the burden on this question falls on the employer, Ford. The panel majority holds that the presumption of regular attendance as an “essential function,” reflected in earlier case law, was outmoded in 2014:
“When we first developed the principle that attendance is an essential requirement of most jobs, technology was such that the workplace and an employer’s brick-and-mortar location were synonymous. However, as technology has advanced in the intervening decades, and an ever-greater number of employers and employees utilize remote work arrangements, attendance at the workplace can no longer be assumed to mean attendance at the employer’s physical location. Instead, the law must respond to the advance of technology in the employment context, as it has in other areas of modern life, and recognize that the ‘workplace’ is anywhere that an employee can perform her job duties. Thus, the vital question in this case is not whether ‘attendance’ was an essential job function for a resale buyer, but whether physical presence at the Ford facilities was truly essential.”
The panel majority holds, therefore, that the “teamwork” rationale was at least disputable. It also holds that Ford’s alternative rationale – that a resale steel buyer needs face-to-face contact with suppliers – also presents a genuine dispute of material fact. Harris testified that even when she was at Ford full-time, most contact with clients was still done remotely. More importantly, “Ford has offered no evidence to prove that Harris would be less able to perform these [face-to-face] site visits if she worked partially, or even primarily, from her home rather than Ford’s facilities.”
The panel majority alternatively holds that the EEOC presented a genuine dispute of material fact about whether Harris was otherwise qualified for her position with the accommodation of telecommuting. The court holds that in contrast to flex-time arrangements, where the employee may not be available at critical times, “telecommuting does not raise the same concerns … because an employer can still rely on an employee to be working during scheduled hours …. [Harris] requested that she be able to work from home when she felt she needed to during normal business hours.”
And while Ford contended that Harris’s performance deficiencies specifically made her a poor prospect for a four-day-a-week telecommuting schedule, the panel majority rejoins that Ford had the “responsibility to engage in an interactive process to explore reasonable alternatives. 29 C.F.R. § 1630.2(o)(3) …. Harris was willing to discuss alternative accommodations, including a telecommuting arrangement for as few as one to two days per week.” Indeed, “Ford cannot use Harris’s past attendance issues as a basis to deny her accommodation because her absences were related to her disability.”
Although Harris rejected the proposed alternative of relocating to other duties, the panel majority holds that “there was no guarantee that such a position would be forthcoming” and that such reassignment would only be considered under the ADA when accommodation of the employee in her current position was an undue hardship. This, Ford failed to prove: “Although setting up a home workstation for Harris might entail some cost, considering Ford’s financial resources and the size of its workforce, this cost is likely to be de minimis. Indeed, Ford has created a written policy in which it pledges to absorb these costs for all employees approved to telecommute.”
In closing, the panel majority holds:
“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 …. We are merely recognizing that, given the state of modern technology, it is no longer the case that jobs suitable for telecommuting are ‘extraordinary’ or ‘unusual.'”
On the retaliation claim, the panel majority holds that the EEOC also presented a genuine dispute of material fact about whether Harris’s filing of her charge caused the spiral in her professional relationship with her boss: “A relatively short period of time elapsed between Harris’s EEOC charge in late April and her ultimate termination in early September, and the EEOC has presented evidence that other retaliatory conduct also occurred during this period. For example, after Harris filed her EEOC charge, her immediate supervisor began conducting intimidating one-on-one meetings with her and held a meeting with all of her coworkers to discuss her attendance problems.” And “Although many of Harris’s performance deficiencies were ongoing problems, they prompted a negative review only after Harris filed her EEOC charge.”
Dissenting, Judge McKeague would hold, in line with prior circuit case law (and other circuits), that “an employee who cannot satisfy an employer’s basic attendance requirements is unqualified under the ADA as a matter of law.” Moreover, according to the dissent, the telecommuting option was not a reasonable accommodation under this record: “Ford has offered overwhelming evidence to support its business judgment that impromptu meetings and problem-solving with the resale buyer team were most effectively handled face-to-face.”
Should the majority opinion stand in this case, employees (especially in the Sixth Circuit) will enjoy greater leverage to negotiate alternative attendance arrangements that accommodate challenging, intermittent disabilities like IBS. One imagines, for instance, that employees with multiple sclerosis and other degenerative conditions might benefit from this precedent.