No Telework Accommodation For IBS Says En Banc Sixth Circuit

Last year the Equal Employment Opportunity Commission (EEOC) tooted its horn with a victory when a three-judge panel on the Sixth Circuit held (2-1) that Ford Motor Company might have violated the Americans with Disabilities Act (ADA) by failing to permit an employee with Irritable Bowel Syndrome (IBS) from teleworking up to four days a week.  Reversing that decision, the en banc Sixth Circuit held (8-5) that there was no ADA violation because “regular and predictable attendance” was an essential function of the employee’s job at Ford, as it is for most jobs.  EEOC v. Ford Motor Co., 2015 U.S. App. LEXIS ____ (6th Cir. April 10, 2015) (en banc).  It is an opinion well worth the read.

Judge McKeague, writing for the majority, started the decision as follows:  “The Americans with Disabilities Act (ADA) requires employers to reasonably accommodate their disabled employees; it does not endow all disabled persons with a job – or job schedule – of their choosing. Jane Harris, a Ford Motor Company employee with irritable bowel syndrome, sought a job schedule of her choosing: to work from home on an as-needed basis, up to four days per week.  Ford denied her request, deeming regular and predictable on-site attendance essential to Harris’s highly interactive job.  Ford’s papers and practices – and Harris’s three past telecommuting failures – backed up its business judgment.”

The details of the underlying facts are not particularly important.  Suffice it to say that Ms. Harris did have IBS.  IBS is unpredictable, a condition that made it quite difficult for Harris to make the one hour drive to work, and to be at work, without significant interruptions along the way and throughout the work day.  Separate from her condition, however, Harris was simply not a stellar performer, and her delusions of adequacy were well documented.  The stress of dealing with IBS, not surprisingly, did not improve her performance.

Ford, like many companies today, offers telecommuting for some jobs.  The company’s telecommuting rules provide that an employee may telework one planned and regular day a week.  Harris, however, wanted the option to telework up to four days a week, if she wanted or needed to do so, due to the unpredictability of her IBS.  This was a significant departure from Ford’s usual telework rules.  Moreover, of her ten essential job duties, Harris conceded that there were “four that could not be performed at home; four that could not effectively be performed from home; and two that were ‘not significant enough to support telecommut[ing].’”

Harris’s boss “explained the circumstances under which telecommuting could work: on a predictable schedule where the strong-performing employee agrees to come to the worksite as needed even on days set for telecommuting. Harris’s coworkers who telecommuted fit that bill. But Harris didn’t, and neither did her proposed schedule.”

Ford offered Harris other accommodations, including moving her closer to the restroom and looking for jobs that might permit telecommuting.  She rejected those offers and came up with no other proposed accommodations.  She instead filed an EEOC charge.  Subsequently, she was fired.

The EEOC took up her case, claiming that she was denied a reasonable accommodation – her proposed telecommuting schedule – and retaliated against under the ADA.  The district court granted Ford’s motion for summary judgment.  EEOC v. Ford Motor Co., 2012 U.S. Dist. LEXIS 128200 ( E.D. Mich. Sept. 10, 2012).  A three judge panel of the Sixth Circuit, 2-1 (Judges Moore and Hemlick, with Judge McKeague dissenting), reversed and remanded.  Of particular significance, was the Sixth Circuit’s pronouncement that “times have changed” as a result of technological developments.  “In this case,” said Judge Moore, “we respond to the world as it exists now, and conclude that there is a genuine dispute of material fact regarding whether Harris can perform all of her job duties from a remote location.”  EEOC v. Ford Motor Co., 752 F.3d 634, 647 (6th Cir. 2014).

The panel decision side-stepped the elephant in the room question: since “times have changed,” is telecommuting always available a reasonable accommodation unless an employer can establish it would be an undue hardship?  What if an employer wants to restrict telecommuting over all?  Who gets to decide whether having employees actually come to the office is required at all?  And what happened to “regular attendance at work is an essential function of any job”?

Those were the sort of issues Judge McKeague alluded to in his dissent when he noted that “[t]he majority holds that a telecommuting arrangement allowing an employee to telecommute four out of five days of the workweek on a spur-of-the-moment, unpredictable basis is a reasonable accommodation under the ADA for a position that involves routine face-to-face interactions. 752 F.3d at  649-650.  Collecting seven other judges with a similar mindset, Judge McKeague’s view found a majority in the en banc decision.

Revisiting the district court’s grant of summary judgment, the majority stressed that “[d]etermining whether a genuine dispute exists of course requires a “fact-intensive, case-by-case” analysis. . . But it equally requires looking to case law for guidance and addressing all the facts in the record – including those that uniformly cut against the plaintiff. Undertaking this analysis, we hold that there is no genuine dispute of material fact on this record: A reasonable jury could not return a verdict for the EEOC on either claim.”

Cutting to the chase, the majority asked:  Is regular and predictable on-site job attendance an essential function (and a prerequisite to perform other essential functions) of Harris’s resale-buyer job? We hold that it is.”  The court continued that “[w]e do not write on a clean slate. Much ink has been spilled establishing a general rule that, with few exceptions, “an employee who does not come to work cannot perform any of his job functions, essential or otherwise.” EEOC v. Yellow Freight Sys., Inc., 253 F.3d 943, 948 (7th Cir. 2001) (en banc) (quoting Tyndall v. Nat’l Educ. Ctrs., 31 F.3d 209, 213 (4th Cir. 1994) (internal quotation marks omitted)). We will save the reader a skim by omitting a long string cite of opinions that agree, but they do. E.g., Samper v. Providence St. Vincent Med. Ctr., 675 F.3d 1233, 1237–38 (9th Cir. 2012) (collecting cases); Mason v. Avaya Commc’ns, Inc., 357 F.3d 1114, 1122–24 (10th Cir. 2004) (same). Our Circuit has not bucked the trend. E.g.,[Smith v.] Ameritech , 129 F.3d at 867. And for good reason: “most jobs require the kind of teamwork, personal interaction, and supervision that simply cannot be had in a home office situation.” Rauen v. U.S. Tobacco Mfg. L.P., 319 F.3d 891, 896 (7th Cir. 2003).

It is equally important to note the five judges on the Sixth Circuit dissented here (the opinion written by Judge Moore), and would have permitted the EEOC to take Harris’s case to a jury.  Two Circuit judges recused themselves.

What’s the takeaway?  First, employers should be careful in structuring telework policies and implementing them in practice.  Common sense suggests – really, it does –  that any job involving detailed interaction with others can almost always be performed better face-to-face. Further, an employer has the right to expect that employees work in a way that, in the business judgment of the employer, will enable them to perform their best.  “Good enough” should not be best practice.

Second, while “just say no” is never a good answer to an accommodation request, remember that an employer need not accept any accommodation requested by an employee. The EEOC’s guidance provides that an employer needs to try to provide accommodation that will make an employee able to successfully perform the essential functions of his or her job.  As long as the employer can show that those job functions can be best performed by all employees when they are in the workplace, regular attendance at work should continue to be a valid condition of employment.

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