Yesterday, a divided federal Sixth Circuit Court of Appeals issued a decision of importance to most employers concerning the ADA and an employer’s ability to require an employee to report to a particular work location as an essential function of the job. EEOC v. Ford Motor Company, No. 12-2484 (6th Cir. 4-22-14). In this case, the employer rejected an employee’s request to work from home several days each week during normal business hours as an accommodation of her IBS disability because the employer considered it to be an essential job duty to interact face-to-face with colleagues when engaging in problem solving and because her earlier attempts to work from home after normal business hours had been unsuccessful. The Court rejected the employer’s evidence that telecommuting (i.e., working from home) was an unreasonable accommodation because the employer’s evidence consisted of problems created by the employee’s working during non-business hours (i.e., flex time). Instead, the Court concluded that the EEOC produced sufficient evidence to create a factual dispute about whether reporting to the office was an essential job function and whether telecommuting was a reasonable accommodation. The Court still acknowledges that flex time arrangements may still be presumptively unreasonable, that predictable attendance is still an essential function of most jobs and that “many jobs continue to require physical presence because the employee must interact directly with people or objects at the worksite.” The Court also rejected the employer’s proposed accommodation of transferring the employee to a different position from which she could reasonably telecommute because “reassignment of an employee is only considered when accommodation within the individual’s current position would pose an undue hardship.” Finally, the Court found sufficient evidence of retaliation for the employee to survive the employer’s summary judgment motion because she was placed on a performance enhancement plan and ultimately terminated for long-standing performance issues which were not escalated until shortly after she filed her EEOC Charge.
According to the Court’s opinion, the employee at issue held
a position as a resale buyer. The role
of resale buyers was to:
respond to emergency supply
issues to ensure that there is no gap in steel supply to the parts
manufacturers. . . The position involved some individual tasks,
such as updating spreadsheets and periodic site visits to observe the
production process. . . . However, “the essence of the job was group
problem-solving, which required that a buyer be available to interact with
members of the resale team, suppliers and others in the Ford system when
problems arose.” . . Ford managers made the business judgment that
such meetings were most effectively handled face-to-face, and that email or
teleconferencing was an insufficient substitute for in-person team
problem-solving. Another resale buyer on [the] team believed that she “could
not work from home more than one day a week and be able to effectively perform
the duties of the resale buyer position.”
The plaintiff had
received positive performance evaluations, but was viewed as in the bottom quartile
of her peers based on her job performance. “She also received low rankings on most
of her job related skills assessment areas in 2007 and 2008.”
The employee’s IBS disability required her to frequently
utilize FMLA leave. In the first seven
months of 2009, she “was absent more often than she was present during core
business hours.” She was permitted to
flex her working hours on a trial basis, but the experiment was deemed to be a
failure. She “was unable to establish regular and consistent work hours” and
could not “engage in team problem-solving or access suppliers to obtain information
during off-hours.” When she “worked nights and weekends, she made mistakes and
missed deadlines because she lacked access to suppliers.”
The employee formally requested in February 2009 that she be
permitted to telecommute on an as-needed basis as an accommodation for her
disability. Ford permitted some
employees to telecommute, but no one in her resale buyer position. After discussing some issues surrounding her
accommodation request, Ford proposed instead moving her cubicle to be closer to
a restroom or transferring her into another position that could accommodate her
request to telecommute. She then filed
an EEOC Charge in April. Thereafter, her
supervisor held a group meeting to discuss how her workload should be
reallocated among the team when she was absent and held one-on-one meetings
with her where she felt he yelled at her.
She was then placed on a 30 performance enhancement plan with concrete
objectives. When she failed to meet the objectives, she was terminated in
September 2009.
The EEOC ultimately filed suit against Ford, alleging
discrimination and retaliation in violation of the ADA. The District Court granted summary judgment
to the employer, but the Sixth Circuit reversed on both claims.
The Court found that the EEOC presented sufficient evidence to
avoid summary judgment on the grounds that that the employee was qualified for
her position both if the requirement was eliminated that she be physically
present at Ford facilities and if she was provided with the telecommuting
accommodation. The EEOC argued that if
Ford’s objections to her attendance were removed, she was qualified for her
position. The Court placed on Ford the
burden of proving that the employee’s physical presence was an essential
function of the resale buyer position. “For many positions, regular attendance
at the work place is undoubtedly essential.”
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. . . .
Ford argues that physical
attendance at the Ford workplace was critical to the group dynamic of the
resale-buyer team. Our sister circuits have recognized that physical presence
at an employer’s facility may be an essential function for some positions
specifically because they require extensive teamwork. . . . However, as we have discussed,
advancing technology has diminished the necessity of in-person contact to
facilitate group conversations. 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. . . . Therefore, we are not persuaded that
positions that require a great deal of teamwork are inherently unsuitable to
telecommuting arrangements.
Moreover, our inquiry does not
end simply because Ford has expressed the business judgment that face-to-face
interaction is desirable. Courts routinely defer to the business judgment of
employers because courts are not equipped with the institutional knowledge to
sit as “super personnel department[s].”,. . . However, we should not
abdicate our responsibility as a court to company personnel boards: 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 ultimately
rejected the employer’s evidence that physical presence was an essential
function as an undisputed fact because the EEOC presented evidence to the
contrary which could be credited by a jury.
For instance, the employee testified that even when she was physically
present at Ford, she still communicated mostly by telephone and email (both of
which she could do from home). More
importantly, her position was not one that required face-to-face interaction
with clients. Although she occasionally
needed to meet with clients, “Ford has offered no evidence to prove that Harris would be
less able to perform these site visits if she worked partially, or even
primarily, from her home rather than Ford’s facilities. . . . . A site visit
requires the resale buyer to leave the location where she ordinarily works,
whether it be a Ford facility or the employee’s home.”
The Court also concluded that the EEOC produced sufficient
evidence to show that telecommuting could be a reasonable accommodation in this
case. “We have previously concluded that telecommuting is not a reasonable
accommodation for most jobs, but that there may be “unusual case[s]” when telecommuting
is reasonable because the “employee can effectively perform all work related duties
at home.” The Court rejected the
employer’s counter-arguments because they focused on problems created by flex
time (i.e., working a different schedule) than in reporting to the same office
location.
Requests for flex-time
schedules may be unreasonable because businesses cannot “operate effectively
when [their] employees are essentially permitted to set their own work hours .
. . . Indeed, leave on a sporadic or unplanned basis may be an unreasonable accommodation.
. . . However, telecommuting does not raise
the same concerns as flex-time scheduling because an employer can still rely on
an employee to be working during scheduled hours. Harris did not request to
“simply miss work whenever she felt she needed to and apparently so long as she
felt she needed to.” . . .
Instead she requested that she be able to work from home when she felt she
needed to during normal business hours.
The Court rejected the
argument that the telecommuting created additional work for the employee’s
co-workers because the identified issues arose from her flex-time arrangement
and not her telecommuting:
A proposed accommodation that burdens other employees may be unreasonable, . . .but the resale- buyer position is not one that requires most of an absent employee’s work to be transferred to a coworker. For many jobs, an employee must be physically present at work to perform specific tasks; when the employee is not present, those duties must necessarily shift to the absent employee’s coworkers.
If Ford objected to Harris’s
request to telecommute for “up to four days per week,” it was Ford’s
responsibility to engage in an interactive process to explore reasonable
alternatives. . . . Harris was willing
to discuss alternative accommodations, including a telecommuting arrangement
for as few as one to two days per week. Ford’s failure to engage in that
discussion is not evidence that a telecommuting arrangement in any form was
unreasonable . . .
The Court also rejected the employer’s concern with the
employee’s attendance record as a reason for rejecting telecommuting because
her absences were related to her disability. One Ninth Circuit opinion concluded that “[i]t would be inconsistent with the purposes
of the ADA to permit an employer to deny an otherwise reasonable accommodation
because of past disciplinary action taken due to the disability sought to be
accommodated.” While the Court acknowledged that “[w]hen an employer “offers a
reasonable counter accommodation, the employee cannot demand a different
accommodation,” it did not find the employer’s proposed alternatives to be
reasonable:
The EEOC has provided evidence
that casts doubt on whether these alternatives address the problems Harris
experienced with her IBS. . . . Clearly, moving Harris to a cubicle closer to
the restroom does not address her needs if she has no control over her bowels
for the time it would take to reach the restroom. Nor do we consider it
reasonable, as the dissent suggests, to expect an employee to suffer the
humiliation of soiling herself on a regular basis in front of her coworkers,
merely because she could use Depends to contain the mess or bring a change of
clothes to clean herself up after the fact. Likewise, Ford’s offer to assist Harris
in finding an alternative position within Ford, . . . was not a reasonable accommodation
because there was no guarantee that such a position would be forthcoming. Furthermore,
“reassignment of an employee is only considered when accommodation within the
individual’s current position would pose an undue hardship.”
The Court then
required the employer to prove that telecommuting would pose an undue hardship.
“[U]ndue
hardship is something greater than hardship, and an employer does not sustain
his burden of proof merely by showing that an accommodation would be bothersome
to administer or disruptive of the operating routine.” The Court concluded that
the employer could not prove undue hardship in this case. “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.”
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.”
The Court also found that the
EEOC produced sufficient evidence of unlawful retaliation by the employer after
the employee filed her EEOC Charge.
While there was a documented history of performance issues, she was not
placed on a PEP until shortly after
she filed her EEOC Charge. Her
supervisor also began holding “intimidating” weekly meetings with her after she
filed her Charge and she was ultimately fired four months after filing her
Charge. The Court concluded that the
EEOC produced sufficient evidence of pretext because:
When viewed in a light
favorable to Harris, the evidence suggests that Harris’s performance failings
did not actually motivate Ford’s decisions to discipline her and terminate her
employment. Although many of Harris’s performance deficiencies were ongoing
problems, they prompted a negative review only after Harris filed her EEOC charge.
. . . In addition, a reasonable jury could infer that the PEP was designed to
set Harris up to fail: One of Harris’s PEP goals was to eliminate a backlog of
paperwork, . . . but Harris
testified that the paperwork was pending only because she needed to wait on
responses from suppliers and coworkers.
Granted, “the paperwork
tasks designated in the PEP “were important duties of the resale buyer
position.” “[B]ut the question is not whether the duties identified in the PEP
were integral to the position; rather, the question is whether the duties were
achievable within the 30-day window provided for in the PEP.”
NOTICE:
This summary is designed merely to inform and alert you of recent legal
developments. It does not constitute legal advice and does not apply to any
particular situation because different facts could lead to different results.
Information here can change or be amended without notice. Readers should not
act upon this information without legal advice. If you have any questions about
anything you have read, you should consult with or retain an employment
attorney.
