EEOC v. Ford Motor Co., No. 12-2484 (April 22, 2014)
by Natania Davis
In a 2-1 split opinion, the Sixth Circuit recently held that a telecommuting arrangement could be a reasonable accommodation for an employee suffering from a debilitating disability. In so finding, the court reversed a district court's grant of summary judgment in favor of Ford Motor Co., where Ford refused a request by the employee (Harris) to telecommute four days out of the work week to accommodate her irritable bowel syndrome. The district court determined, inter alia, that the failure to acommodate claim could not prevail because Harris is not a "qualified" individual given that she was excessively absent from work.
Addressing that holding, the Sixth Circuit grappled with the distinction between attendance at work and physical presence and noted:
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. Determining whether physical presence is essential to a particular job is a "highly fact specific" question. Hoskins, 227 F.3d at 726. Accordingly, we consider several factors to guide our inquiry, including written job descriptions, the business judgment of the employer, the amount of time spent performing the function, and the work experience of past and present employees in the same or similar positions. See 29 C.F.R. § 1630.2(n)(2).
The court rejected Ford's argument that the job's teamwork requirement rendered Harris' position inherently unsuitable to telecommuting:
The world has changed since the foundational opinions regarding physical presence in the workplace were issued: teleconferencing technologies that most people could not have conceived of in the 1990s are now commonplace. Indeed, Judge Posner presciently observed in Vande Zande that his conclusion that "team work under supervision generally cannot be performed at home without a substantial reduction in the quality of the employee's performance" would "no doubt change as communications technology advances." 44 F.3d at 544. Therefore, we are not persuaded that positions that require a great deal of teamwork are inherently unsuitable to telecommuting arrangements.
As to Ford's business judgment argument, the court stated: "While we do not allow plaintiffs to redefine the essential functions of their jobs based on their personal beliefs about job requirements, id., neither should we allow employers to redefine the essential functions of an employee's position to serve their own interests. Rather, we should carefully consider all of the relevant factors, of which the employer's business judgment is only one."
The court did limit its determination:
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. See, e.g., Melange, 482 F. App'x at 84 (custodian). 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."
Another interesting finding on the Sixth Circuit's part was its determination that Ford failed to engage in the interactive process to identify a reasonable accommodation for Harris. In the court's own words, Ford "suggested several alternative accommodations" to telecommuting. "Harris rejected each of these options." The court noted that the alternative accommodations wouldn't suit Harris, but missing from the fact pattern of the case is any suggestion that Harris suggested an alternate accommodation in response. Maybe it's just me, but a flat out rejection of an alternate accommodation suggestion doesn't scream "interactive" either.
For more on EEO related matters and procedures, see A Guide to Federal Sector Equal Employment Law and Practice by Hadley and Effective Summary Judgment Motions by Hadley and Laws.