While the ADA does not explicitly list telecommuting as a reasonable accommodation, the EEOC guidelines for disability accommodations under the ADA indicate that allowing employees to work from home is required: “An employer must modify its policy concerning where work is performed if such a change is needed as a reasonable accommodation, but only if this accommodation would be effective and would not cause an undue hardship.” While the courts initially seemed reluctant to follow this position, the U.S. Court of Appeals for the Sixth Circuit recently held in EEOC v. Ford Motor Company, No. 12-2484 (6th Cir. Apr. 22, 2014) that “communications technology has advanced to the point that it is no longer an ‘unusual case where an employee can effectively perform all work-related duties from home.’” Id. at 19. The Sixth Circuit concluded that there was a genuine dispute of material fact regarding whether plaintiff could perform all of her job duties from a remote location, and accordingly, reversed the district court’s grant of summary judgment on the failure-to-accommodate claim, as well as plaintiff’s retaliation claim. Id.
This ruling is important for employers in EEOC litigation.
From 2003 to 2009, Jane Harris worked as a resale buyer for Ford, serving as an intermediary between steel suppliers and the companies that use steel to produce parts for Ford. Id. at 2, 6. Her job duties involved some individual tasks, but 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. Id. at 2. Harris’ reviews showed that she was a consistently competent employee who could afford to improve in some areas. Id. at 3.
Throughout her entire period of employment with Ford, Harris suffered from irritable bowel syndrome (“IBS”), an illness that causes fecal incontinence, causing her to accumulate absences. Id. at 3. Over time her symptoms worsened and she began taking intermittent FMLA leave. Id. After first allowing Harris to telecommute on a trial basis, Harris’s supervisor determined that Harris was unable to establish regular and consistent work hours and Harris again accumulated excessive absences. Id. at 4. In 2009, Harris formally requested that she be allowed to telecommute as an accommodation for her IBS. Id. at 5. After Harris rejected several alternatives offered by Ford, including moving Harris’s cubicle closer to the restroom or seeking another job within Ford more suitable for telecommuting, Ford declined her request determining that Harris’s position required in-person communication. Id. at 5, 10. Subsequently, in April 2009, Harris filed a charge of discrimination with the EEOC. Id. at 6. Thereafter, Harris’s performance review categorized her as a “lower achiever” and she was placed on a 30 day performance improvement plan and subsequently terminated for failure to meet the plan’s objectives. Id. In 2011 the EEOC filed a complaint in the U.S. District Court for the Eastern District of Michigan, alleging that Ford violated the ADA by failing to accommodate Harris’s disability and by retaliating against her for filing a charge with the EEOC. Id. Ford moved for summary judgment on both claims, and the district court granted summary judgment. Id.
The Sixth Circuit’s Opinion
The Sixth Circuit first examined whether Harris met the requirements for her failure-to-accommodate claim. Id. at 7. After finding Harris indisputably disabled under the ADA, the Sixth Circuit found that Harris had presented evidence to establish that she was qualified on two alternative bases: (a) she was qualified for the position after the elimination of the requirement that she be physically present at Ford facilities, or (b) she was qualified for the position with a telecommuting accommodation. Because Harris provided sufficient evidence to create a genuine dispute of material fact as to her qualification for the resale buyer position, the burden was shifted to Ford to prove that either (i) the physical-presence requirement is an essential function of Harris’s job or (ii) the telecommuting arrangement would create an undue hardship. Id. at 8.
The Sixth Circuit found that Ford failed to demonstrate either. Although the Sixth Circuit recognized that regular attendance at the workplace is undoubtedly essential for most positions, attendance at the workplace can no longer be assumed to mean attendance at the employer’s physical location, as it once was. Id. at 9-10. Thus, the question was not whether “attendance” was an essential job function for a resale buyer, but whether physical presence at the Ford facilities was truly essential. The Sixth Circuit determined that advancing technology has diminished the necessity of in-person contact to facilitate group conversations; thus, positions that require a great deal of teamwork are not inherently unsuitable to telecommuting arrangements. Id. at 10. The Sixth Circuit concluded that the EEOC offered enough evidence to dispute Ford’s conclusion that Harris’s position required face-to-face interactions at Ford and with clients. Id. at 10-11. Similarly, the Sixth Circuit explained that while it may have previously concluded that telecommuting would not be an acceptable reasonable accommodation for most jobs, the class of cases in which an employee can fulfill all requirements of the job while working remotely has greatly expanded and the EEOC presented sufficient evidence to create a genuine factual dispute as to whether Harris was one of those employees who can effectively work from home. Id. at 11. In rejecting Ford’s argument that Harris’s previous attendance issues demonstrated she was not a suitable candidate for telecommuting, Ford could not use Harris’s past attendance issues as a basis to deny her accommodation because her absences were related to her disability. Id. at 15-16. Finally, the Sixth Circuit opined that the alternatives offered by Ford did not reasonably accommodate her disability. Id. at 17.
Turning to Harris’s retaliation claim, the Sixth Circuit found that when viewed in a light favorable to Harris, the evidence suggested 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. Id. at 21. The Sixth Circuit held that the evidence presented created a genuine dispute as to whether Ford was truly motivated by retaliatory intent or by a reasoned business decision to terminate an underperforming employee. Id. at 22. As a result, the Sixth Circuit reversed the district court’s grant of summary judgment to Ford, and remanded for further proceedings. Id.
Implications For Employers
This ruling demonstrates that more courts may be willing to follow the EEOC’s lead in finding that telecommuting is a viable ADA reasonable accommodation for many more jobs as technology continues to advance, particularly where the company policy includes a telecommuting option upon request and approval. As noted by the dissent, however, this could lead to companies tightening their telecommuting policies in order to avoid legal liability and fewer employees benefiting from generous telecommuting policies. Id. at 32. In the meantime, employers, when presented with the alternative of telecommuting as a reasonable accommodation of an indisputably disabled employee, should more carefully consider this alternative, and if rejected, clearly document why this alternative is not feasible for the position.
Readers can also find this post on our Workplace Class Action blog here.