In EEOC v. Ford Motor Company, the federal Sixth Circuit appellate court (covering Kentucky, Michigan, Ohio, and Tennessee) recently held that telecommuting may be a reasonable accommodation under the Americans with Disabilities Act ("ADA") for an employee with severe Irritable Bowel Syndrome ("IBS").
Factual Background
Jane Harris worked for Ford as a resale steel buyer. Her job was to respond to emergency supply chain issues and ensure continuity of the steel supply to parts manufacturers. Her role involved both individual tasks, such as updating spreadsheets, periodic site visits to observe the production process, etc., as well as group problem-solving tasks requiring her to interact with suppliers and members of her team. From 2004 to 2008, she received good performance reviews, although she was critiqued for being disruptive and argumentative at times.
Harris suffered from IBS, and her symptoms became worse over time often resulting in incontinence. She frequently was unable to commute to work or stand up from her desk without soiling herself. Accordingly, Harris began taking intermittent Family and Medical Leave Act ("FMLA") leave on days when she had severe IBS symptoms. These absences negatively affected her performance. Her supervisor offered her a flex-time schedule on a trial basis, but revoked the offer because Harris was unable to maintain consistent work hours. Harris then began working from home informally (without approval from Ford), often in the evenings and on weekends. Because Ford had not approved a telecommuting schedule for Harris, it counted every day that she did not show up to work as an absence for illness, claiming that if she was too ill to come to work, she was too ill to work at all. Further, Harris made mistakes when she worked on nights and weekends, possibly because she lacked access to suppliers during non-business hours. For the first seven months of 2009, Harris was absent more than she was present during normal business hours, and her supervisor was forced to give some of her work to others to ensure coverage.
Ford had a written policy allowing telecommuting for salaried employees for up to four days per week, but it recognized in the policy that this arrangement was not appropriate for all jobs, employees, or managers. Other employees at Ford, including buyers in similar roles as Harris, telecommuted once per week. In early 2009, Harris formally requested to work from home for up to four days per week (as needed) to accommodate her IBS. Harris claimed that most of her work could be done via telephone or computer and that she could reschedule any meetings as needed. Ford denied the request since it determined that her position was not suitable for telecommuting, especially given the great deal of teamwork involved. As alternatives, Ford proposed moving Harris' cubicle closer to the bathroom or finding another job at the company that was suitable for telecommuting. Harris rejected these options and Ford refused to entertain Harris' counterproposal of telecommuting one or two times per week.
About two months after her formal telecommute request, Harris filed a charge with the Equal Employment Opportunity Commission ("EEOC") for discrimination and failure to accommodate her disability. Thereafter, her supervisor held a meeting with her colleagues, which Harris attended, to discuss how to handle her workload in light of her absences. He also scheduled weekly performance meetings in which he allegedly engaged in "military style yelling" and refused to let her leave the room, rated her as a low achiever in her interim performance review, and placed her on a 30-day performance improvement plan. Ford terminated her at the end of the performance improvement plan as it determined that she failed to meet its objectives.
In 2011, the EEOC filed a complaint on her behalf against Ford alleging that it failed to accommodate her under the ADA and had retaliated against her for filing an EEOC charge. Although the lower court granted summary judgment in favor of Ford, the Sixth Circuit reversed, holding that the EEOC had provided enough information to allow the case to continue. In the process, the court strongly hinted that a telecommuting accommodation would have been reasonable in this case, and that, given the modern workplace and its remote capabilities, such arrangements are less "extraordinary" or "unusual" than they used to be.
Court's Decision
The court's opinion focused on whether (1) Harris' physical presence at the workplace was an essential function of her job, as Ford argued, and (2) telecommuting was a reasonable accommodation.
As for physical presence, the court noted that "attendance at the workplace can no longer be assumed to mean attendance at the employer's physical location. ...the law must respond to the advance of technology...and recognize that the 'workplace' is anywhere that an employee can perform her job duties." Ford's main argument for physical presence being an essential function was that "teamwork" was integral to Harris' position. In response, the court noted that technology has "diminished the necessity of in-person contact to facilitate group conversations" and as such it did not believe that positions requiring teamwork are inherently unsuited to telecommuting.
The court went on to find that telecommuting likely was a reasonable accommodation given Harris' duties, and that any cost to set up a home office for Harris (which Ford pledged to do in its telecommuting policy) was minimal especially in light of Ford's resources. The court reminded Ford that the undue hardship threshold is high and greater than simply showing that accommodation would be annoying to administer or "disruptive to the operating routine." Ford's alternative accommodations — a cubicle closer to the bathroom or reassignment — did not impress the court. Moving Harris' cubicle closer to the bathroom would not alleviate her problem of soiling herself during her commute or when getting up from her desk. Further, reassignment to another job that was purportedly more amenable to telecommuting was only appropriate if her current accommodation request would pose an undue hardship, which the court held was not the case.
Showing some balance in the law, the court explicitly stated that it was not holding that most modern jobs are suited to telecommuting, and it maintained that many jobs still require physical presence to interact directly with coworkers and objects at the workplace. It also acknowledged that determining whether physical presence is essential to a job is a highly fact specific inquiry and courts should consider a variety of factors when making that determination, including job descriptions, the employer's business judgment, the amount of time spent performing the function, and the work experience of employees in similar roles.
Take-Away
This case highlights the importance of engaging in a meaningful interactive process with disabled employees to find the appropriate accommodation and shows the broader consideration courts are giving to telecommuting arrangements in today's modern workplace.
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