Sixth Circuit: Telecommuting Is an Unreasonable Accommodation If Employee Presence Is Essential Job Function | Practical Law

Sixth Circuit: Telecommuting Is an Unreasonable Accommodation If Employee Presence Is Essential Job Function | Practical Law

In Equal Employment Opportunity Commission v. Ford Motor Company, the Court of Appeals for the Sixth Circuit, sitting en banc, held that an employee's request to work from home for up to four days per week, when on-site attendance was an essential function of the job, was not a reasonable accommodation under the Americans With Disabilities Act (ADA). The Sixth Circuit granted summary judgment to Ford Motor Company on the employee's failure to accommodate and retaliation claims.

Sixth Circuit: Telecommuting Is an Unreasonable Accommodation If Employee Presence Is Essential Job Function

by Practical Law Labor & Employment
Published on 14 Apr 2015 • USA (National/Federal)
In Equal Employment Opportunity Commission v. Ford Motor Company, the Court of Appeals for the Sixth Circuit, sitting en banc, held that an employee's request to work from home for up to four days per week, when on-site attendance was an essential function of the job, was not a reasonable accommodation under the Americans With Disabilities Act (ADA). The Sixth Circuit granted summary judgment to Ford Motor Company on the employee's failure to accommodate and retaliation claims.
On April 10, 2015, the Court of Appeals for the Sixth Circuit sitting en banc held in Equal Employment Opportunity Commission v. Ford Motor Company that an employee's request to work from home for up to four days per week to perform a job for which on-site attendance was an essential function was not a reasonable accommodation under the ADA. The Court vacated an earlier panel decision (see Legal Update, Telecommuting More Likely to be Reasonable Accommodation in Today's Tech Landscape: Sixth Circuit) and granted summary judgment in favor of Ford Motor Company on failure to accommodate and retaliation claims (No. 12-2484, (6th Cir. Apr. 10, 2015).)

Background

Jane Harris worked for the Ford Motor Company as a resale buyer, responsible for purchasing raw steel from suppliers and then reselling the steel to parts manufacturers. The position of resale buyer was considered by Ford to be interactive and to require a high degree of personal contact between the resale buyer and the parts manufacturer. Ford considered on-site attendance to be an essential function of the job. Harris had Irritable Bowel Syndrome (IBS), which caused her to miss work on numerous occasions.
In 2009, Harris was absent from work more than she was present. Harris also had job performance issues, some of which may have been linked to her illness and attendance problems, and was rated in the bottom 10% of her peer group in 2008 and 2009. Ford provided Harris three opportunities to telecommute, but each time Harris's attendance and work performance did not improve. Harris ultimately requested to telecommute for up to four days each week (other resale buyers at Ford were permitted to telecommute, although not necessarily for up to four days each week), but Ford determined that her request was unreasonable, indicating that nearly all of Harris's job responsibilities could not effectively be performed from home. Ford proposed alternative accommodations, but Harris rejected them and filed a charge with the EEOC. In September 2009, after several additional rocky months on the job and a final poor performance evaluation, Ford terminated Harris's employment.
In 2011, the EEOC sued Ford under the ADA. The district court granted summary judgment to Ford, concluding that telecommuting up to four days per week was not a reasonable accommodation. The EEOC appealed, and in 2014, a Sixth Circuit panel reversed (see Legal Update, Telecommuting More Likely to be Reasonable Accommodation in Today's Tech Landscape: Sixth Circuit). The full court vacated the panel's decision and granted en banc review.

Outcome

The Sixth Circuit, sitting en banc, disagreed with the panel decision and affirmed summary judgment in favor of Ford. The Court held that:
  • Harris's proposed accommodation of working from home for up to four days per week was not a reasonable accommodation under the ADA because regular, predictable, on-site attendance was an essential function of her position.
  • Because Harris's constant absences rendered her unable to perform the essential functions of her position, she was not a "qualified individual" under the ADA.
The court rejected the EEOC's attempts to point to a genuine issue of material fact warranting the denial of summary judgment, noting that:
  • Harris's affidavit regarding her ability to perform the essential functions of the resale buyer position from home was not persuasive because she could not show that those functions could be performed as effectively from home as on-site.
  • The EEOC's reliance on the fact that other resale buyers telecommuted failed to consider that the other resale buyers:
    • telecommuted no more than one or two days per week; and
    • agreed in advance to come in to work on their designated telecommuting day if needed.
  • General improvements in technology over time did not necessarily mean this particular job could be done while telecommuting.
  • It was not necessary to determine if Ford denied Harris's proposed accommodation out of bad faith or failed to put sufficient effort into the interactive process because Harris was not a qualified individual under the ADA.
  • Harris's retaliation claim failed because a reasonable jury would not find that Ford terminated Harris for any reason other than poor job performance.
In her dissent, Judge Karen Nelson Moore disagreed with the majority on every major point. Judge Moore found genuine issues of material fact in several areas, including whether:
  • The employee's physical presence at the work site was an essential function of the resale buyer position.
  • Telecommuting was a reasonable accommodation for Harris.
  • Ford sufficiently engaged in the interactive process when addressing Harris's telecommuting request.
  • Ford retaliated against Harris for filing a charge with the EEOC.

Practical Implications

The Sixth Circuit's en banc decision in EEOC v. Ford Motor Company appears to be a straightforward application of the principle that a requested accommodation that eliminates an essential function of the job is not a reasonable accommodation. In the majority's view, when an employee's physical presence at work is an essential function of the position, telecommuting is not a reasonable accommodation. The court expressed its concern about putting employers in a position where they must choose between approving an unpredictable telecommuting arrangement of up to 80% of the week or facing trial on a failure to accommodate claim.
The decision illustrates the need for employers to:
  • Maintain job descriptions that specify the essential functions of a position, including regular on-site attendance where applicable.
  • Implement and consistently enforce clear telecommuting policies.