By Julia Belagorudsky, Esq.
The Sixth Circuit, en banc, recently reversed its previous decision, and held that Ford did not fail to reasonably accommodate an employee by denying her request to telecommute and did not retaliate against her for bringing the issue to the EEOC’s attention.1 The court found that the ADA “does not endow all disabled persons with a job – or job schedule – of their choosing.”2
The facts of the case are detailed in the January 2, 2015 blog post, “When An Employee’s Home Is His Castle. . . And His Office – Telecommuting and Employer Responsibilities Under the ADA.” To summarize: Jane Harris worked as a resale steel buyer for Ford Motor Company and suffered from irritable bowel syndrome (IBS). As a resale steel buyer, Harris acted as an intermediary between steel and parts suppliers. Ford considered that job to be a highly interactive one, which, for example, required resale steel buyers to be available at a moment’s notice for meetings with suppliers. In 2009, Harris requested permission to telecommute on an as-needed basis, up to four days per week, as an accommodation for her disability. Even though Ford did allow some resale buyers to telecommute, Ford denied Harris’s request and determined that her position was not suitable to telecommuting. Harris claimed that Ford’s decision constituted unlawful discrimination under the Americans with Disabilities Act (ADA). Four months later, Ford terminated Harris’s employment with the company. In 2011, the EEOC filed a complaint against Ford, alleging that Ford violated the ADA by failing the accommodate Harris’s disability.
To be eligible for a reasonable accommodation, a disabled employee must also be an otherwise “qualified individual,” meaning that employee is able to perform the essential functions of his or her position with or without any accommodation. The court first determined that regular and predictable on-site attendance was essential for Harris’s position. In Ford’s business judgment, the resale buyer position required much face-to-face interaction and Harris’s repeated absences made her unable to perform the essential functions of a resale buyer.
The court, however, did not rely solely on what Ford said, but also on what Ford did. In addition to Ford’s stated requirement that the resale buyer position requires on-site attendance, the court relied on the telecommuting schedules of other resale buyers, which only allowed for telecommuting one set day per week and required an agreement from the employee to come into work if needed, even on the “telecommuting day.”3 Importantly, the court said that its ruling does not require blind deference to the employer’s stated judgment, but it does require granting summary judgment (as it did in this case) where an employer’s judgment as to essential job functions – evidence by the employer’s words, policies, and practices and taking into account all relevant factors – is job-related, uniformly enforced, and consistent with business necessity.4
The court ultimately found that because on-site attendance was essential for Harris’s position, her requested accommodation for telecommuting up to four days per week was not reasonable.5 The court went even further in noting that Ford’s past reasonable accommodations, including telecommuting on an as-needed basis and plans to help Harris improve her attendance, failed because Harris proved unable to establish regular and consistent work hours or perform the core objectives of the job.6 Therefore, the court held that Harris was not a “qualified individual” as a matter of law.7
Note that the failure to provide a reasonable accommodation is a non-independent liability – meaning that if an employee is unable to establish that he or she is a “qualified individual,” an employer cannot be found liable for failing to provide a reasonable accommodation for that employee.8 Here, the court found that Ford could not possibly be held liable for failing to provide a reasonable accommodation because Harris was not found to be a “qualified individual.”9
In what may be an interesting insight into the court’s practical concern, it explained that it did not want companies to tighten telecommuting policies to avoid liability in reasonable accommodation cases.10 The court was concerned that if it found for the EEOC, once an employer allowed one person to telecommute on a limited basis, that employer would have to allow all people with a disability the right to telecommute on an unpredictable basis. It states, “[a] protective tool becomes a weapon if used unwisely; and telecommuting should not become a weapon.”11
The Sixth Circuit’s recent holding in this case does not alter the basic conclusions of our first article on this case. Since there is no bright line rule as to what constitutes a reasonable accommodation, employers must undertake a fact specific investigation, on a case-by-case basis, of the employee’s needs, essential job functions and reasonableness of the requested accommodation. Indeed, the court’s reasoning establishes a road map for employers to follow in a reasonable
An important part of court’s decision is that it relied, though not conclusively, on an employer’s judgment of essential job functions. In addition to the stated job functions, the court considered how Ford treated other requests for telecommuting for employees in similar positions. Employers should be sure that their determinations of essential job functions are in line with their actions (i.e. approving certain employees for telecommuting while denying others must be supported by clear reasons).