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Scoreboard For The Bullard Edge (Part II) - Two Cases, Two Correct Calls

April 24, 2015

By Michael G. McClory

As noted in Part I yesterday The Bullard Edge recently made two bold(ish) predictions.  Both predictions have proven to be on the mark, so naturally we want to revisit them.  (There will be no post looking back at our prediction of a Cleveland Browns Super Bowl victory – as far as we are concerned, that prediction was never made.)
  • EEOC improperly issues Guidance on Pregnancy Discrimination?Check.
  • Telecommuting as reasonable accommodation is case by case?Check.
In Part II, after framing the telecommuting issue, we revisit our observations from February, we look at what the court said this month, and we offer a fresh observation.

Part II: Telecommuting May/May Not Be A Reasonable Accommodation

The Issue: In our February 27, 2015 post, we started with a lengthy hypothetical fact pattern involving an employee (ET) who worked as part of a production supply team at HomeCo.  For medical reasons ET needed frequent rest room breaks.  HomeCo tried providing him with intermittent family leave and a flex time schedule, but these proved to be ineffective.  Next the employee asked that he be allowed to telecommute on an as-needed basis.  His employer denied the request; it said that the uncertainty of “as-needed” telecommuting conflicted with the team construct of the buyer position.  The company believed that a physical presence in the workplace was necessary for the team to get its work done.  Without accommodation, the employee’s work suffered and eventually led to his termination from employment.

About this fact pattern, we asked the following question: If he were able to prove these facts, would a court conclude that ET should be allowed to phone HomeCo?  We noted the similarity between our fact pattern and the fact pattern in EEOC v Ford Motor Company, a real case that was then pending before the Sixth Circuit Court of Appeals.  In that case, the trial court said “no” and granted summary judgment to Ford.  On appeal, a Sixth Circuit three-judge panel reversed.  Ford asked the full Sixth Circuit to review the case.  The full appellate court agreed to rehear the case en banc and vacated the panel decision.

What We Said:  In essence, the question we considered was whether the full Sixth Circuit would agree with the three-judge panel.  We said that the “answer, maddeningly, is maybe.” 

We described the competing positions as follows.  On the one hand, Ford argued that granting the telecommuting request would result in the employee working an unpredictable schedule.  Ford convinced the trial court that such an arrangement was not reasonable.

On the other hand, EEOC had gotten the three-judge panel to agree that there was a question of material fact as to whether it would have been reasonable for Ford to allow its employee to work from home (especially given that Ford had a telecommuting policy and already had other buyers working remotely some of the time).

With that as background, The Bullard Edge referred back to observations we made in September 2003.

“As ‘remote office’ technology continues to get more effective, more and more employees are requesting telecommuting as an accommodation for their disabilities. An employer should consider and respond to such a telecommuting request in the same way that it evaluates other accommodation requests: by engaging in an ‘Interactive Process’ with the employee. 

The Interactive Process is simply a two-way communication between employee and employer regarding accommodation.  The goal is to determine whether accommodation is needed, is available, would be effective, and would not be an undue hardship on the employer.  Although an employer is free to design its own process, there are four-steps that should take place in every Interactive Process.
  • Confirm the employee’s request;
  • Determine the essential functions of the job;
  • Obtain medical information relevant to the request; and
  • Identify and evaluate potential accommodations.
Following these steps should put an employer in a position to grant or deny a request, and to avoid liability under the ADA or state law.”

Evaluating a request to telecommute in the same way as any other accommodation request means one thing: it will be evaluated on a case-by-case basis.

What Happened:  On April 10, 2015 the full Sixth Circuit affirmed the trial court’s grant of summary judgment to Ford.  There are some problems with some of the non-essential language in the decision.  (See, for example, page 2: “True to its founder’s vision, Ford uses its employees in assembly lines to perform independent yet interconnected tasks.”  It is weak to cite to a vision from 111 years ago when trying to address the way in which a job is performed today.) 

However, for its main holding, the decision repeatedly emphasized that Ford had denied Harris’s (the employee) telecommuting accommodation request only after a particularized analysis of the duties of the specific resale-buyer job performed by Harris, as well as Harris’s personal performance history.  In other words, Ford had conducted the requisite case-by-case analysis.  Consider the following statements (with emphasis added where we see appropriate):
  • "Is regular and predictable on-site job attendance an essential function (and a prerequisite to perform other essential functions) of Harris’s resale-buyer job?  We hold that it is.” 
  • “On this record, the EEOC cannot show that regularly attending work was merely incidental to Harris’s job; it was essential to her job."
  • “Nor could Harris perform the essential functions of her job with Ford’s past reasonable accommodations. Three times Ford allowed Harris to telecommute on an as-needed basis (on flex time, no less). And three times Ford developed plans to improve her attendance. But all six efforts failed because Harris proved unable “to establish regular and consistent work hours” or “perform the core objectives of the job.”

Interestingly, the Sixth Circuit rejected a number of the EEOC’s arguments because they lacked the individualized consideration required.  For example, EEOC argued that Harris should have been allowed to telecommute because other resale-buyers were allowed to telecommute.  In rejecting this, the appellate court stated: “This argument might work if the other employees’ schedules were materially similar (say, unpredictably telecommuting three days per week).  But Harris’s coworkers worked from home on materially different schedules: on one set day per week—no more, and sometimes less.” 

Bottom-line ~ As The Bullard Edge has been saying for year years, requests for reasonable accommodation must be granted or denied on a case-by-case basis. 

Fresh Observation: In our prior writings on this topic, The Bullard Edge has repeatedly emphasized the fact that technological advances are making it more and more feasible for telecommuting to be successful.  We stand by that, but must give credit to the Sixth Circuit for highlighting that technology alone is not enough.  Consider the following statement from the court.

“Despite its commonsense charm, the EEOC’s appeal to technology ultimately fails to create a genuine fact issue.  It is ‘self-evident,’ the EEOC declares without citation to the record or any case law, that ‘technology has advanced’ enough for employees to perform ‘at least some essential job functions’ at home.  [Citation omitted.]  In the abstract, no doubt, this is precisely right.  [Citation omitted.]  But technology changing in the abstract is not technology changing on this record.”

The decision went on to identify ways in which technology has not advanced in a way that is relevant to the resale-buyer position occupied by Harris.  The lesson is that consideration of technology is just one of the factors that must be considered when thoroughly undertaking a case-by-case analysis.  Or, to quote phrasing from The Employer Handbook (an excellent blog edited by Eric B. Meyer), “Don’t overrate technology.”

Best regards,
The Bullard Edge