The U.S. Court of Appeals for the Sixth Circuit recently overturned a district court's award of summary judgment to Ford Motor Company in an action brought by the Equal Employment Opportunity Commission (EEOC) to establish telecommuting as a reasonable accommodation under the Americans with Disabilities Act (ADA). At the EEOC's urging, the sharply divided panel held that the lawfulness of Ford's refusal to accommodate a disabled employee by granting her request to telecommute four of five days each week should be resolved by a jury. Ford had argued that the employee's position, which required frequent internal and external personal interaction, team work and participation in group decision making, was unsuited to the near full-time telecommuting sought by the employee, and that the employee, when permitted to work from home from time to time, made too many errors.
The panel's opinion, in which a district judge sitting by designation joined, sidestepped circuit precedent at several points in its analysis to reach its result, prompting a strongly worded dissent from Circuit Judge David W. McKeague. Most glaring was the majority's departure from "[t]he stated law of this circuit, [which] 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 dissent was equally critical of the analytical means by which the panel reached its decision, including the majority's refusal to appropriately credit Ford's business judgment despite the "overwhelming evidence" in support of Ford's decision. The majority's refusal to defer to Ford's business judgment that on-site attendance was essential to the position again ignored circuit precedent. Case law repeatedly cautions judges against acting as super personnel departments by passing judgment on the wisdom of business decisions, the legitimacy of which are supported by evidence.
The majority cited two interrelated reasons why it was not bound by past precedent. It first recast its earlier decisions as addressing only "physical attendance" at a "bricks and mortar" workplace, declaring, "The vital question in this case is not whether 'attendance' was an essential job function of a resale buyer, but whether physical presence at the Ford facilities was truly essential." Secondly, the majority observed, apparently outside the record, that the world has changed, that its precedents were "early cases," and that there have been many recent technological developments that facilitate remote work arrangements. It concluded: "the law must respond to the advance of technology in the employment context as it has in other areas of modern life, and recognize that the 'workplace' is anywhere that an employee can perform her job duties."
Conclusions and Food for Thought
- It is likely that Ford will seek en banc review by the full appellate court in view of the opinion's departure from precedent, the panel split, and the fact that the dispositive voice was that of a district judge.
- The EEOC's party status in this case is significant, as the opinion endorses the Commission's current position that telecommuting must be considered as a reasonable accommodation. This means that in processing charges of discrimination brought by employees whose requests to telecommute to accommodate a disability were denied, the EEOC can be expected to find against employers unless there are very specific and persuasive reasons to deny the request. An informal discussion letter in late February in which its Office of Legal Counsel criticized a sample reasonable accommodation policy underscores this point. In that document, EEOC lawyers took issue with the sample policy's statement that working from home generally is not a reasonable accommodation "except in extraordinary circumstances." See discussion letter here.
- The majority focused on Ford's seemingly liberal telecommuting policy as a basis for questioning its business judgment that it could not permit the employee here to telecommute four days each week. That certainly could cause Ford and others to have second thoughts about generous telecommuting practices.
- Even though Ford offered two alternative accommodations when it declined the employee's request to telecommute four days per week, the majority still found that it failed to satisfy the interactive process requirement. It declared that Ford also should have discussed allowing the employee to telecommute fewer than four days per week, citing the employee's declaration that she would have agreed to try working at home once or twice per week.
Given the EEOC's express intent to force employers to consider telecommuting to accommodate disabilities that make daily physical attendance impossible, and its success before the Sixth Circuit panel, employers can expect an increase in requests to telecommute as an accommodation. The Ford decision also reiterates that the courts have been strictly applying the interactive process requirement imposed by the EEOC in ADA cases. This means that the time to think through the feasibility of telecommuting generally or for certain positions in the accommodation context is now, and not when the first demand to telecommute by a disabled employee is received.
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