On April 10, 2015, in an eagerly awaited decision interpreting the reasonable accommodation provisions of the Americans with Disabilities Act (“ADA”), the United States Court of Appeals for the Sixth Circuit ruled, en banc, in favor of Ford Motor Co., rejecting the EEOC’s claim that Ford violated the ADA by not allowing a disabled employee to telecommute as a reasonable accommodation. EEOC v. Ford Motor Co., No. 12-2484. Eight judges on the Sixth Circuit ruled in favor of Ford, while five dissented. The decision highlights many of the thorny issues concerning telecommuting as a potential reasonable accommodation under the ADA. It also underscores the importance of engaging in a good faith “interactive process” with a disabled employee requesting accommodation.
The Telecommuting Accommodation Request and the EEOC’s Lawsuit
Jane Harris was employed by Ford as a steel “resale buyer.” Resale buyers act as intermediaries between Ford’s steel suppliers and its parts manufacturers. They purchase steel from the suppliers and sell it to the parts manufactures, who then manufacture the parts and supply them to Ford’s assembly line. Ford claimed that the resale buyer position was “highly interactive,” requiring face-to-face interactions at the manufacturing site.
Harris suffered from irritable bowel syndrome. As an accommodation for her condition, she asked to work from home as needed and up to four days per week. After several meetings with Harris, Ford advised her that it could not accommodate her telecommuting request because it would prevent her from performing the essential functions of her job. It offered alternative accommodations, which Harris rejected. Harris then filed a charge of disability discrimination with the EEOC. In August 2011, the EEOC sued Ford on Harris’s behalf.
In September 2012, the district court granted Ford’s motion for summary judgment, concluding that working from home up to four days per week was not a reasonable accommodation under the ADA. The EEOC appealed, and in April 2014 a divided panel of three Sixth Circuit judges reversed, concluding that there was an issue of fact as to whether Harris’s telecommuting proposal was reasonable. The full Sixth Circuit vacated that decision and reheard the appeal en banc. On April 10, 2015, it affirmed summary judgment for Ford.
The Sixth Circuit’s Analysis of Telecommuting as a Reasonable Accommodation
Reviewing the record in the case, the majority of the Sixth Circuit’s en banc panel concluded that “regular and predictable on-site attendance [was] an essential function (and a prerequisite to perform other essential functions) of Harris’s resale-buyer job.” If that were as far as the court had gone, it would have been an interesting decision, albeit one limited to the particular facts of the case. But the court went much further, drawing broad conclusions about workplaces in general: “in most jobs, especially those involving teamwork and a high level of interaction, the employer will require regular and predictable on-site attendance from all employees,” and “most jobs would be fundamentally altered if regular and predictable on-site attendance is removed” (emphasis in original).
In the 1990s, several federal appellate courts had rejected telecommuting as a reasonable accommodation under the ADA, concluding that on-site attendance was typically essential, but the EEOC argued in EEOC v. Ford that it was “self-evident,” since then, that technology had advanced to the point that telecommuting was now a more viable accommodation option. This technological advance was not “self-evident” to the court, however, which faulted the EEOC for not introducing evidence to show how technology enabled the particular job at issue in that case to be performed at home. Rather, the court pointed out several facts which suggested that telecommuting would not permit Harris to perform her essential job functions. Although Ford had in fact allowed Harris to telecommute on an ad hoc basis on several occasions, those telecommuting experiments had failed, and Harris had agreed that four of her ten primary duties could not be performed at home. Moreover, Harris proposed to work from home “as needed” and without a set schedule. Although a few other Ford resale buyers telecommuted, they did so only on one set day per week and agreed to come to work if needed. Against the backdrop of the court’s general view that “most jobs” require regular and predictable on-site attendance, these facts ruled out telecommuting as a reasonable accommodation for Harris.
Importantly, however, the majority opinion did not rule out telecommuting as a reasonable accommodation in all cases. Rather, it concluded that, under the facts of this case, Harris’s telecommuting proposal was not a reasonable accommodation because it would not allow her to perform the essential functions of her particular job.
Five judges of the Sixth Circuit dissented, essentially arguing that a jury should have been allowed to decide whether Harris’s telecommuting proposal was reasonable. The dissent faulted the majority for deferring to Ford’s judgment as to what functions of the resale buyer position were essential.
A Good Faith Interactive Process – In the Eye of the Beholder?
While both the majority and dissent in EEOC v. Ford recognized that, under the ADA, both employers and employees must engage in a good faith “interactive process” to determine whether a reasonable accommodation is possible, they reached opposite conclusions as to whether Ford had satisfied its obligation. The record showed that Ford had met with Harris several times to discuss accommodations and, when it rejected Harris’s accommodation proposal, it told her it was willing to talk with her again if she could identify another accommodation. To the majority, this showed Ford’s good faith. To the dissent, however, it evidenced a bad faith effort to place the burden entirely on Harris to come up with accommodation proposals, “abdicating any responsibility on its part to help in that process.” What’s striking here is that precisely the same set of facts led to radically different conclusions about good faith participation in the interactive process.
The Sixth Circuit’s conclusion that “most jobs” require regular and predictable on-site attendance is certainly a helpful precedent for employers resisting telecommuting as a reasonable accommodation, especially when the proposed telecommuting is “as needed” and therefore necessarily irregular and unpredictable. The Sixth Circuit’s decision also stressed the relevance of the employer’s judgment as to which functions of a job are essential. What is crucial, however, is “not just what the employer says but also what the employer does.” Thus, although it may be difficult to deny a telecommuting accommodation if other employees are telecommuting on a regular basis, an employer may still prevail if, as Ford was able to do, it can distinguish those other telecommuting arrangements.
As always, an employer should assiduously engage in a reasonable accommodation interactive process and document that engagement. The majority opinion in EEOC v. Ford emphasized the importance of ongoing meetings with the disabled employee to clarify accommodation requests and offer alternatives. The dissent emphasized that an employee’s request for accommodation should be the starting point for discussions and that employers should avoid prematurely shutting down the interactive process or shifting the burden entirely to the employee to propose accommodations. Although interactive processes must necessarily be tailored to the particular circumstances, employers should consider these guidelines when approaching accommodation requests – especially those that may contemplate some sort of telecommuting arrangement.