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Ruling Discusses Telecommuting as a Reasonable Accommodation

The EEOC v. Ford Motor Company case that was recently decided in the Sixth Circuit Court of Appeals should give every HR manager and business owner cause for concern.

Here are the facts:

In 2003, Jane Harris was hired as a resale buyer at Ford. Resale steel buyers serve as intermediaries between steel suppliers and “stampers,” the companies that use steel to produce parts for Ford. Their role is 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.”

Harris suffered from Irritable Bowel Syndrome (IBS) which caused her attendance to be very erratic. She was also identified as a poor performer and placed on a performance plan. The company accommodated her by allowing her to telecommute from home on an informal basis even though there was no formal program to work remotely for that position in place. The work problems continued and when she formally applied for the company telecommuting program, her application was denied. Karen Jirik, a Ford personnel relations representative, suggested several alternative accommodations instead, including moving Harris’s cubicle closer to the restroom or seeking another job within Ford more suitable for telecommuting. Harris rejected each of these options.

While still employed, Harris filed charges with the EEOC, in part complaining that her boss was retaliating against her because the company had to accommodate her medical problems. She was once again placed on a performance plan which she failed to complete. Ford managers made the business judgment that because the work performed in that job required meetings that were most effectively handled face-to-face, email or teleconferencing was an insufficient substitute for in-person team problem-solving. Another resale buyer on the same 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.” Harris worked in this role until September 2009, when her employment was terminated.

The Court ruling on this case:

A lawsuit was filed by the EEOC claiming disability discrimination and retaliation. The district court reasoned that the EEOC could not prevail on the failure-to accommodate claim because Harris was not a “qualified” individual on the basis of her excessive absenteeism. Furthermore, relying on precedent “declin[ing] to second-guess an employer’s business judgment regarding the essential functions of a job,” the district court found that Harris’s request to telecommute up to four days per week was not a reasonable accommodation for her position. The district court additionally reasoned that the EEOC could not establish that Harris’s low performance reviews, placement on a performance improvement plan, and employment termination were retaliatory because those decisions were also based on performance deficiencies unrelated to the attendance issues arising from her IBS.

On appeal, the 6th Circuit ruled that Ford did not do a proper job of dialoging about her accommodation needs and essentially made it impossible for her to perform because it would not allow her to telecommute during core work hours. In addition, the Court stated that “Ford cannot use Harris’s past attendance issues as a basis to deny her accommodation because her absences were related to her disability.”

Finally, the Court essentially said that Ford’s offered accommodations were not so reasonable as to force Harris into a take it or leave it position since her request to telecommute part time could have worked…if they had tried it.

In a cautionary note, the Court reminded employers, “The EEOC has provided evidence that Harris is ‘otherwise qualified’ for the resale-buyer position, either because her physical presence is not ‘essential’ or because she requested a reasonable accommodation for her disability. 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’.”

In terms of the retaliation claim, the Court stated, “Taken together, the examples of negative treatment from Ford supervisors along with the close temporal proximity between the EEOC charge and Harris’s termination, are sufficient evidence to create a genuine dispute as to the existence of a causal connection.….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.”

The dissenting judge in the case made the same argument that every employer would. “The 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. The stated law of this Circuit, however, is that attending work on a regular, predictable schedule is an essential function of a job in all but the most unusual cases, namely, positions in which all job duties can be done remotely. The majority further holds that an employee’s flat-out rejection of an employer’s offer to help her find another position does not constitute an alternative reasonable accommodation, despite the fact that the reason talks could not evolve to a point of identifying a specific position was because of the employee’s refusal to consider the possibility. Finally, the majority holds that terminating an employee for repeated performance and interpersonal shortfalls could be a pretext for discrimination, even when these shortfalls are undisputed, because the employee filed an EEOC charge. But this Circuit requires more: the EEOC must prove that Ford’s proffered reason is pretext for discrimination, and this the EEOC fails to do. Rather than applying these well-established standards, the majority departs from precedent and fails to credit the overwhelming, uncontroverted evidence offered by Ford. Because I disagree with the majority’s analysis of the ADA discrimination claim as well as the ADA retaliation claim, I respectfully dissent.”

Lessons learned for all employers:

  1. Don’t assume that a proffered request for accommodation simply won’t work unless it is on its face unreasonable. Instead, employer representatives should work with all parties involved to determine if the employee can in fact succeed…or fail. Keep the interactive discussions going until both parties can determine whether or not reasonable accommodations can be made.
  2. Terminating an employee once an EEOC charge has been filed is guaranteed to bring a retaliation case to a jury.
  3. Make regular attendance an essential job function in any job description to help in proving that being at work is relevant to the job.

To read the EEOC’s news release on this case, click here.

Employee Management, Miscellaneous , ,

About Don Phin

Don has been a California employment practices attorney for over 30 years and joined ThinkHR Corporation in January 2014 as Vice President, Strategic Business Solutions when ThinkHR acquired HR That Works, a human resources solutions company that Don founded in 2001. In addition to his role at ThinkHR, Phin is the co-editor of the Employment Practices Liability Consultant (EPLiC) Journal, published by the International Risk Management Institute (IRMI); the author of numerous books and e-books; and a nationally-recognized speaker on a variety of risk-related HR topics.

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