Telecommuting More Likely to be Reasonable Accommodation in Today's Tech Landscape: Sixth Circuit

Practical Law Legal Update 8-566-1133 (Approx. 6 pages)

Telecommuting More Likely to be Reasonable Accommodation in Today's Tech Landscape: Sixth Circuit

by Practical Law Labor & Employment

Background

The plaintiff, a resale buyer at Ford, suffered from IBS, an illness that causes fecal incontinence. On bad days, her disability prevented her from being able to drive to work or stand up from her desk without soiling herself. She took intermittent FMLA leave, but her supervisors said her absences were affecting her job performance. In 2005, her supervisor allowed her to work on a flex-time commuting schedule on a trial basis, but then stopped it because she was unable to establish regular and consistent work hours.

In February 2009, the plaintiff formally requested to telecommute on an as-needed basis as an accommodation for her disability. Ford had a telecommuting policy that authorized employees to telecommute up to four days per week, but specifically said it was not appropriate for all jobs, employees, work environments or managers. Although Ford allowed several other buyers to telecommute on one scheduled day per week, her supervisors said her position was not suitable for telecommuting and denied her request. Her duties involved:

Serving as an intermediary between steel suppliers and the companies that used steel to produce parts for Ford.
Responding to emergency supply issues.
Updating spreadsheets.
Periodic site visits.
Group problem-solving with other members of the resale team, suppliers and others.

Ford suggested alternative accommodations, including moving her cubicle closer to the restroom or switching to another job more suitable for telecommuting, but the plaintiff rejected them. In 2009, the plaintiff filed a charge of discrimination with the EEOC. Shortly thereafter, she claimed Ford took several adverse employment actions against her, including:

Placing her on a company program to improve attendance.
Weekly meetings with her supervisor to discuss her performance.
Placing her on a Performance Enhancement Plan (PEP) that required her to meet certain benchmarks within 30 days.
Terminating her for failing to meet the PEP's objectives.

After the plaintiff's termination, the EEOC filed a complaint in district court, alleging that Ford violated the ADA by failing to accommodate her disability and retaliating against her for filing an EEOC charge.

The district court granted Ford's motion for summary judgment on both claims, holding that:

The plaintiff could not prevail on her failure to accommodate claim because, due to her excessive absenteeism, she was not a qualified individual under the ADA.
Her request to telecommute up to four days per week was not a reasonable accommodation based on Ford's business judgment that her physical presence at work was essential to her job.
The EEOC could not prove that the alleged adverse employment actions were retaliatory because they were caused by her poor work performance, which was unrelated to her attendance issues caused by her disability.

The plaintiff appealed to the Sixth Circuit.

Outcome

The Sixth Circuit reversed the district court's decision granting summary judgment to Ford on both claims, holding that:

There was a genuine issue of material fact whether the plaintiff's physical presence at work was essential to performing her job.
A reasonable jury could find that Ford retaliated against her for filing an EEOC charge.

For the plaintiff's failure to accommodate claim, the Sixth Circuit found that the plaintiff presented sufficient evidence showing that she was otherwise qualified for her position despite her disability:

If Ford eliminated the requirement that she be physically present at work.
With a telecommuting accommodation.

Specifically, the court held that Ford could not show that her physical presence at work was essential to performing her job because:

The assumption that attendance in the workplace is essential for most jobs no longer applies due to technological advances that allow employees to work remotely.
Positions that involve a lot of teamwork are not inherently unsuitable for telecommuting arrangements.
The district court should have considered all relevant factors when determining the essential functions of her job instead of merely deferring to Ford's business judgment.
When the plaintiff was physically present at work, the majority of her interactions were done via conference call, not in-person.
Her position did not actually require face-to-face interactions with clients.
The plaintiff could still perform site visits if she worked partially, or even primarily, from her home.
Ford has allowed other resale buyers to telecommute, albeit on a more limited basis.

The court also held that the plaintiff's request for a telecommuting accommodation was reasonable because:

Unlike flex-time scheduling, she would be available during regular business hours.
The performance issues she had during her flex-time arrangement would not be a problem because they were caused by her inability to work during core business hours rather than her physical absence from work.
If Ford objected to her telecommuting for four days a week, it should have engaged in an interactive process to find a more reasonable telecommuting arrangement.
Her past attendance issues could not be used as a basis to deny her accommodation because her absences were related to her disability.
Although employers ordinarily have the option of choosing an accommodation from reasonable options, Ford could not force the plaintiff to choose from their suggested alternative arrangements because her telecommuting request was reasonable.
Ford could not show that her request created an undue hardship because:
- the cost of the accommodation would be de minimis given Ford's size and financial resources; and
- Ford had a written policy promising to absorb these costs for employees allowed to telecommute.

Additionally, the Sixth Circuit reversed the district court's grant of summary judgment on the retaliation claim, holding that a reasonable jury could find that Ford retaliated against the plaintiff after she filed her EEOC charge because:

She was terminated four months later.
The alleged adverse employment actions occurred after she filed her charge, including giving her a negative performance review that addressed work issues that were allegedly ongoing from before she filed her claim.
A reasonable jury could infer that the PEP she was placed on and terminated over was designed to set her up to fail by including objectives over which she had no control.

Practical Implications

This case highlights an important shift against employers in ADA failure to accommodate claims, specifically that in the Sixth Circuit and other circuits looking to the Sixth Circuit for guidance. For example:

Physical presence in the workplace may no longer be an inherently essential function of many jobs. Evolution in technology to support remote working may inform a court's assessment of this issue.
Courts may be less willing to defer to an employer's business judgment about a job's suitability for telecommuting.
Although employers are typically allowed to choose an accommodation for its employees, employers may be required to accept an employee's accommodation request if it is reasonable, particularly when it comes to a remote working arrangement.

Telecommuting More Likely to be Reasonable Accommodation in Today's Tech Landscape: Sixth Circuit | Practical Law