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Sixth Circuit Finds Teleworking a Reasonable Accommodation Depending on the Situation

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In EEOC v. Ford Motor Co., the Sixth Circuit ruled that Jane Harris, a resale buyer at Ford who suffers from irritable bowel syndrome (IBS), was not qualified for her position, and therefore Ford did not discriminate against Harris when it denied her request to telework as a reasonable accommodation.

The EEOC brought claims on Harris’s behalf under the Americans with Disabilities Act, alleging that Ford failed to reasonably accommodate Harris when it denied her request for a schedule with maximum flexibility to telework, and retaliated against her for reporting this denial to the EEOC. The District Court granted summary judgment to Ford on both claims.

The Sixth Circuit reversed the District Court and held that whether teleworking is a reasonable accommodation was a question for a jury. In an en banc review, the Sixth Circuit affirmed the District Court’s grant of summary judgment. In the en banc opinion, the Sixth Circuit determined that no reasonable jury could find that telecommuting was a reasonable accommodation under this particular set of facts, but also held that telecommuting could be a reasonable accommodation under a different fact pattern.

At Ford, Harris worked as a resale buyer. Her duties included purchasing raw steel from steel suppliers and then reselling the steel to parts manufacturers. While some of the interactions between the resale buyer and parts suppliers occurred by email and telephone, others required that resale buyers meet suppliers at their sites and at Ford’s site.

Harris’s IBS causes her uncontrollable and unpredictable bowel movements. Harris thus requested, as a reasonable accommodation, the flexibility to telework up to four days a week. Ford denied her request, stating that regular and predictable on-site attendance was a requirement for the resale buyer position. A few months later, Ford fired Harris, citing performance issues.

The Sixth Circuit cited Ford practice and policy, and Harris’s past performance problems while telecommuting, in holding that Harris’s request was unreasonable. Ford’s practice and policy limited telecommuting for resale buyers. While other resale buyers at Ford had a telecommuting agreement in place, in practice those employees only telecommuted one day a week, on a predictable basis. Additionally, those employees agreed to come to Ford’s worksite, even if they were scheduled to telework, if needed. Harris, however, sought to telework on an unpredictable basis up to four days a week.

The Sixth Circuit also noted that four of Harris’s ten core duties could not be performed at home and an additional four could not effectively be performed at home. And Ford argued that the remaining two duties were too insignificant to support telecommuting. But, according to the Sixth Circuit, even if Harris could have performed all of her duties at home, her past telecommuting failures made telecommuting on an unpredictable basis unreasonable in this case. During Harris’s three previous telecommuting attempts, she consistently failed to establish regular hours and failed to perform her core duties, forcing her colleagues to “pick up the slack” and perform those duties that Harris could not perform at home.

Harris testified that she could perform her job duties remotely, but the Court held that an employee’s unsupported testimony that she could perform her job functions from home does not preclude summary judgment. The Court also pointed out that in analyzing whether an accommodation is reasonable, it is not enough for an employer to state that it is not.

Here, though, the record reflected more than just Ford’s or Harris’s word. The record showed that other resale buyers telecommuted at most one set day a week. The Court found it significant that those other workers have a predictable, not flexible, schedule and agreed in advance to come into work on their set telecommuting day if needed. The en banc panel rejected the notion that once an employer allows one person the ability to telecommute on a limited basis, it must allow all people with a disability the right to telecommute on an unpredictable basis up to 80% of the week.

While the Sixth held that technological advances have not made a highly interactive job one that can be effectively performed at home, it acknowledged that those advances have made it possible for employees to perform some essential job functions at home. And despite finding that “regularly attending work on-site is essential to most jobs,” the Sixth Circuit left open the door for plaintiffs to prove that their duties can be performed remotely, and thus that telework can be a reasonable accommodation.

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