The case is EEOC v. Ford Motor Company decided by a 2-1 split ruling by the 6th Circuit on 4/22/14 [2014 U.S. App. LEXIS 7502].  The case is important because historically, circuit courts, including the 6th Circuit, have routinely held that working at home is an essential job function for most jobs.  This case, therefore, presents an important twist that could have implications for a variety of employers who have work-at-home policies for certain types of jobs under certain types of conditions, as it may discourage employers from continuing such policies.

The facts of the case are that Jane Harris, a resale steel buyer for Ford, suffered from irritable bowel syndrome (IBS) and requested that she work at home via telecommunication four days per week.  Ford had a policy allowing for this accommodation for some jobs, but argued that the resale job did not fall into this category.  Ford offered to accommodate Harris by either moving her to a cubicle close to the rest room or reassigning her to another job that was more amenable to working at home.  Harris rejected both accommodations and filed an ADA lawsuit.  Harris had a history of excellent work performance from 2004 to 2008 but began receiving less stellar performance reviews thereafter.  Ford ultimately terminated Harris prompting the addition of a retaliation claim.  The district court rejected both the ADA and retaliation claims in a summary judgment, which were overturned, thus permitting both claims to go to trial.

There was no question that Harris was disabled (her IBS clearly restricted a major life activity).  However, the district court ruled that she was not a qualified individual because of her excessive absenteeism.  The district court declined to “second-guess an employer's business judgment regarding the essential functions of a job," affirming similar rulings made in other cases.  The district court also reasoned that the retaliation claim lacked merit because termination was based on “performance deficiencies unrelated to the attendance issues arising from her IBS.”

In overturning the district court, the 6th Circuit majority considered prior precedents on the work-at-home issue as well written job descriptions and experiences of similarly situated past and present employees and ruled:

When we first developed the principle that attendance is an essential requirement of most jobs, technology was such that the workplace and an employer's brick-and-mortar location were synonymous. However, as technology has advanced in the intervening decades, and an ever-greater number of employers and employees utilize remote work arrangements, attendance at the workplace can no longer be assumed to mean attendance at the employer's physical location. Instead, 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. Thus, the vital question in this case is not whether "attendance" was an essential job function for a resale buyer, but whether physical presence at the Ford facilities was truly essential.

The majority then ruled that attendance was not an essential job function for the resale position, and that Ford’s offer for reassignment to another job more suitable for working at home is only applicable if “accommodation within the individual's current position would pose an undue hardship."   The majority also ruled that a jury should decide if the reason for termination (poor performance) was pretext for retaliation.

The dissenting judge disagreed with the majority’s reasoning on all counts.  However, the most interesting part of the dissent related to existing employee policies on working at home.  Accordingly

My disagreement with the majority on the ADA discrimination and retaliation claims aside, it bears mentioning the unfortunate impact that this case will have on employees working for companies in this circuit. Again, the EEOC does not dispute that the resale buyer job required face-to-face interactions that cannot be done via telecommunication. Rather, during oral argument, the EEOC summed up its position as follows: "If that part of the [resale buyer] work is so critical and spontaneous that you can't predict when it's going to happen, then it doesn't make sense for Ford to let anybody telecommute ever. Yet [Ford does] let people telecommute, people doing the exact same job as [Harris] is." So the lesson for companies from this case is that, if you have a telecommuting policy, you have to let every employee use it to its full extent, even under unequal circumstances, even when it harms your business operations, because if you fail to do so, you could be in violation of the law. Of course, companies will respond to this case by tightening their telecommuting policies in order to avoid legal liability, and countless employees who benefit from generous telecommuting policies will be adversely affected by the limited flexibility.

More generally, split three-judge panel rulings are always good candidates for en banc rulings.  This one is a particularly good candidate because it differs dramatically from the run of cases on working at home policies.


By Art Gutman, Ph.D., Professor, Florida Institute of Technology

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