On Friday, the United States Court of Appeals for the Sixth Circuit issued its decision in EEOC v. Ford Motor Company, No. 12-2484, 2015 WL 1600305 (6th Cir. Apr. 10, 2015), an ADA case involving telecommuting as a reasonable accommodation. Let’s take a look:
Jane Harris began working for Ford in 2003. She was a resale buyer. Resale buyers purchase raw steel from suppliers and resell that steel to parts manufacturers. At Ford, resale buyers frequently meet with suppliers, parts manufacturers and other Ford employees to conduct business in-person on site. Additionally, resale buyers frequently meet with suppliers at their sites. Although Harris showed promise early in her career, things quickly went downhill. By her fourth year, she ranked in the bottom 22% of her peer group. And by the end of her fifth year, she ranked in the bottom 10%. At this point, Harris was “not performing the basic functions of her position.” According to her supervisors, she lacked interpersonal skills, performed poor quality work and had chronic problems with attendance. By 2009, Harris was absent from work more often than she was present. And when she did come to work, she frequently came late and left early.
Harris attributed her performance and attendance problems to her irritable bowel syndrome. Ford tried to help: Ford put Harris on a special schedule of four 10-hour days a week and allowed her to telecommute on an as needed basis. But this didn’t work: Harris never kept consistent work hours, whether at home or on-site, and she failed to perform her basic job functions. But Ford kept trying. Over the next year or more, Ford repeatedly gave Harris additional chances to try telecommuting. But this never worked. Harris’s performance remained sub-par and she routinely refused to attend on-site meetings.
Harris then requested leave to work up to four days a week from home. Ford’s policies limited telecommuting for resale buyers. Because of the amount of face-to-face interaction involved in the position, resale buyers were able to telecommute, at most, on one set day per week. Even then, resale buyers were required to come to the worksite as needed, even on their preset telecommuting day. Further, telecommuting among resale buyers was limited to strong performers. As such, Harris’ request for a full-time telecommuting schedule simply did not fit within Ford’s existing policies. But Ford considered the request.
Harris had ten core job responsibilities. Harris herself admitted that she could not perform four of these ten responsibilities from home. As Ford saw it, four could not be performed from home, another four could not be performed effectively from home and the remaining two were not significant enough to support telecommuting. Ultimately, Ford concluded that Harris’s proposed accommodation was unreasonable. Although Ford did not grant Harris’s request, management did offer Harris other accommodations: Management offered to move Harris closer to the restroom or help her find another job within the company that was better suited for telecommuting. Harris rejected each alternative. In spite of this, Harris’s supervisors kept trying and asked Harris to let them know if she identified another accommodation.
But Harris never identified another accommodation. Instead, a week later, she emailed her supervisors claiming that the denial of her request violated the ADA. A day after that, she filed a charge of discrimination with the EEOC. From there, things unfolded in a predictable fashion: Harris had weekly meetings with a supervisor at Ford regarding her attendance and performance problems. Per Harris, she felt threatened in these meetings. In July of 2009, Harris once again ranked in the bottom 10% of her peers for the second year in a row. Per Harris, the poor evaluation was retaliation against her for filing a charge of discrimination. Ford placed Harris on a performance enhancement plan. The plan was basically remedial. Harris failed at that, too. That was the last straw. Ford terminated Harris in September 2009.
In August 2011, the EEOC sued Ford under the ADA alleging that Ford failed to reasonably accommodate Harris’s disability and that it terminated her in retaliation for her filing a charge of discrimination. After a year in litigation, the district court granted summary judgment holding that Harris’s request to work from home up to four days a week was not a reasonable accommodation and that there was no evidence of retaliation. The EEOC appealed. On appeal, a panel of the Sixth Circuit reversed. The Sixth Circuit then vacated its original decision and granted review en banc. The second time around, the Court went the other way and ruled strongly in Ford’s favor.
At its core, the decision focused on whether or not attendance at the work site was an essential part of Harris’s job. Generally, employers have the right to determine whether or not attendance is an essential job function. Per the EEOC’s informal guidance on the matter, employers may refuse a telecommuting request when a job requires face to face interaction with colleagues, clients or customers or immediate access to documents and information located only in the workplace. As the Sixth Circuit put it, “Regular, in-person attendance is an essential function – and a prerequisite to essential functions – of most jobs, especially the interactive ones.” Applying that standard to the instant case, Ford easily wins: Ford’s policies and practices clearly establish that all of the company’s resale buyers regularly and predictably work on site. Those who telecommute do so on one set day per week with the understanding that they will come to work on that day if needed.
Harris’s repeated failure to show up for work made it impossible for her to perform the essential functions of her job. She missed meetings with colleagues, suppliers and parts manufacturers. For years, her performance reviews noted that Harris had significant problems with interpersonal communication. Her chronic absences no doubt played a role in those difficulties. Even Harris herself agreed that she could not perform many of her job functions from home. Bottom line: An accommodation is not a reasonable one if it entails eliminating essential functions from the job. In the case at bar, the proposed accommodation clearly was not reasonable. Because Harris could not perform the job with reasonable accommodations, she was not a qualified individual.
Harris’s retaliation claim fared no better. The record contained no evidence that could support a finding of retaliation. Instead, Harris offered little more than the ipse dixit assertion that Ford’s making her attend weekly performance meetings and placing her on a performance enhancement plan were retaliatory. But the overwhelming weight of the record evidence clearly suggested otherwise. Harris had a well-documented history of subpar performance: She was ranked in the bottom 10% of employees in her position both before and after she filled the discrimination charge. The interventions Ford required after Harris filed her charge of discrimination were simply the next steps in a long line of measures meant to address an employee’s poor performance.
Beyond this, the retaliation claim failed on causation: To prevail on her retaliation claim, Harris would have to establish that her filing a discrimination charge with the EEOC was the but for cause of her termination. In other words, she would need evidence that Ford would not have fired her if she had not filed a charge. There was no evidence whatsoever to support that contention. In fact, all of the evidence suggested that – charge or not – Harris was not a good employee and Ford would eventually terminate her employment. Not surprisingly, that’s exactly what happened.
The EEOC’s entire case can be summarized as follows: Some resale buyers at Ford who are strong performers telecommute one day a week, but those employees report to the worksite whenever necessary, even on their telecommuting day. Because of this, Jane Harris, who has a poor performance record, should be allowed to telecommute as much as she wants and should never be required to come onsite. Ford should grant Harris this accommodation in spite of (1) her previous failed attempts at telecommuting (2) the fact that Harris cannot effectively perform her job while telecommuting and (3) the fact that Ford has offered to help her find a different position in the company more suitable to telecommuting. By failing to give in to Harris’s demands, Ford violated the ADA.
Objectively, this is not a strong ADA case. I have litigated employment cases on both sides. If a plaintiff came to me with these facts, it would take me all of 2 minutes to turn down the case. Harris was a terrible employee and an HR nightmare for years. Ford, on the other hand, did basically everything right. Not only did Harris get her day in court, but the EEOC sued on her behalf. And they originally won in the Sixth Circuit! In spite of the fact that Ford ultimately prevailed en banc, that is not cause for businesses to celebrate. Instead, the entire case is a cautionary tale.
- Job Descriptions: In job descriptions and other written materials, companies that want their workers on-site should indicate that physical presence at the workplace on a daily basis is considered an essential job function. It may sound absurd to recommend such exact phrasing, but that is now necessary for at least two reasons. First, the dissent in this case argues that “regular attendance” does not necessarily need to be at a physical worksite. As such, companies should make job descriptions and other written materials crystal clear that by attendance they mean presence onsite. Second, the term regular may be too loose. Based on the logic advanced by the dissent and the EEOC, the term regular attendance could be twisted into meaning once a week. Bottom line: Job descriptions need to be explicit about the employee working from the office on a daily basis.
- Rejecting Unreasonable Accommodations: When faced with a request for a seemingly unreasonable accommodation, employers cannot reject the request out of hand. Any rejection of requested accommodations – such as unlimited telecommuting – must be accompanied by (1) an explanation of the company’s basis for rejecting the request and (2) a proposal for alternative accommodations. If litigation ensues, companies must be able to document that they considered the request, rejected it based on sound reasoning and offered an alternative. Document everything.
- Telecommuting Policies: The fact that the EEOC took this case suggests that the Commission has an axe to grind about telecommuting. As the EEOC sees it, if a company allows any amount of telecommuting, then any employee with a disability should be able to telecommute as much as they want. In response, companies should tighten their telecommuting policies. If companies allow certain employees to telecommute without a written policy, then those companies should immediately implement a written policy. The written policy should (A) clearly indicate that telecommuting is not an entitlement (B) identify job titles or roles that are suitable for telecommuting (C) indicate that a specific telecommuting schedule must be approved by the company on an employee-by-employee basis.