Sixth Circuit Court of Appeals
April 22, 2014
Keywords: Title I, employers, essential job functions, telecommuting, reasonable accommodations, retaliation
Summary: Title I of the Americans with Disabilities Act (ADA) requires an employer to make "reasonable accommodations" for individuals with disabilities so long as it does not cause "undue hardship.". This case focuses on whether telecommuting is a reasonable accommodation.
Ford Motor Company hired Jane Harris as a steel resale buyer in 2003. Harris was rated as "excellent plus" on all her annual performance reviews until 2008, but also was regularly given the lowest score for her annual "contribution assessment." She dealt with the symptoms of irritable bowel syndrome (IBS) from the beginning of her employment, but it worsened as time went on. She began to take intermittent leave provided by the Family Medical Leave Act (FMLA) when she experienced severe IBS symptoms.
Harris's absences began to affect her job performance, so her supervisor allowed her to work a flex-time telecommuting schedule on a trial basis in 2005. This trial telecommuting was deemed unsuccessful, and so another method, "Workplace Guidelines," was tried to help Harris improve her work attendance. The guidelines required regular, on-time attendance, advance notice and approval for all medical matters that would affect her attendance, and a “narrative letter” from her doctor that included a return to work date and an actual (not stamped) doctor’s signature to be submitted within a week of any absence. If any part of these guidelines were violated, it could result in termination. The Workplace Guidelines did not improve Harris's attendance.
In 2009, Harris formally requested to telecommute on an as-needed basis as an accommodation for her disability. Ford's policy allows telecommuting up to four days a week, but also limits which jobs or employees can telecommute to this extent. A meeting was held to discuss the request, where Harris provided that most of her work could be done via computer or telephone. Her supervisors separately discussed the request, but decided that Harris's position was not suitable for telecommuting because "the essence of the job was group problem-solving, which required that a buyer be available to interact with members of the resale team, suppliers and others in the Ford system when problems arose." These interactions, Ford believed, were most effectively handled face-to-face; email or teleconferencing was an insufficient substitute for in-person team problem-solving.
Ford suggested several other possibilities, such as moving her cubicle closer to the restroom; Harris wearing some form of protection against flare-ups (such as Depends) or having a change of clothes on hand; or finding another position within the company that would allow telecommuting. Harris rejected these options.
A few months later, Harris filed a charge of discrimination with the Equal Employment Opportunity Commission (EEOC). She was again placed on "Workplace Guidelines" to try to help with her absences. When this did not work, she was placed on a Performance Enhancement Plan (PEP). The PEP is a tool used to establish concrete objectives that an employee could easily achieve within thirty days, but at the end of Harris's 30-day PEP period, Ford determined that she had not met any of her goals. Ford then terminated Harris.
The EEOC filed a complaint in the United States District Court for the Eastern District of Michigan on behalf of Harris alleging that Ford violated the ADA by failing to accommodate Harris's disability and by retaliating against her for filing a charge with the EEOC. Ford moved for, and was granted, summary judgment on both claims. The EEOC appealed.
The ADA provides that employers may not "discriminate against a qualified individual on the basis of disability in regard to job application procedures, the hiring, advancement, or discharge of employees, employee compensation, job training, and other terms, conditions, and privileges of employment." Additionally, the ADA prohibits retaliation "against any individual because such individual has opposed any act or practice made unlawful by [the ADA] or because such individual made a charge... under [the ADA]."
Because this is an appeal of the summary judgment, the Court must first decide if there is a genuine dispute of material fact regarding Harris’ ability to perform the essential requirements of her job from a remote location. The Court applied a three-part test: 1) the plaintiff must prove that she is disabled, 2) the plaintiff must establish that she is "otherwise qualified" for the position, despite her disability; and 3) if this proof is offered, the employer must prove that a challenged job criterion is essential, and therefore a business necessity, or that a proposed accommodation will impose an undue hardship.
First, Harris's disability, IBS, was never disputed, and thus this was not an issue to prove.
Second, the plaintiff must establish that she is "otherwise qualified" for the position, despite her disability. The Court said Harris could do this by showing she was qualified without accommodation from the employer, with an alleged "essential" job requirement eliminated, or with a proposed reasonable accommodation.
Harris shows, first, that she was qualified after the elimination of the requirement that she be physically present at Ford facilities. The proof she offers is that her annual performance evaluations were acceptable if her absences were discounted. Harris shows, second, that she was qualified for the position with a telecommuting accommodation. Notably, the Court diverges from some earlier decisions and states that, "the class of cases in which an employee can fulfill all requirements of the job while working remotely has greatly expanded." Further, the Court notes that technology has decreased the necessity of in-person contact, and specifically mentions that teleconferencing is now commonplace. The Court further quotes Judge Posner in Vande Zande, who stated that "team work under supervision [that] generally [could not] be performed at home without a substantial reduction in the quality of the employee's performance" would "no doubt change as communications technology advances."
The third prong of the Court’s test requires the employer to prove that a challenged job criterion is essential, and therefore a business necessity, or that a proposed accommodation will impose an undue hardship. Thus, since Harris offered proof that physical presence was not essential and telecommuting was reasonable, Ford has to show that Harris's physical presence at the facility was essential or that telecommuting would cause them undue hardship. Previously, regular attendance at the work place was considered to be undoubtedly essential. See Brenneman v. MedCentral Health Sys., 366 F.3d 412, 418 (6th Cir. 2004); See also Gantt v. Wilson Sporting Goods Co., 143 F.3d 1042, 1047 (6th Cir. 1998).
Because the court found a genuine dispute of the facts regarding whether Harris could perform the essential requirements of her job from a remote location via telecommuting, the Sixth Circuit reversed the summary judgment in favor of Ford and remanded the issue to the trial court.
Again, since this issue is in regards to an appeal, the Court is only deciding if the summary judgment was inappropriate. Thus, they must decide if the facts are disputable.
In order for a plaintiff to prove a retaliation claim, the Sixth Circuit uses the McDonnell Douglas burden-shifting framework:
First, the plaintiff must prove that she actually has a cause of action. In order to do this, she must show that she engaged in protected activity; she suffered an adverse employment action; and there was a causal link between the protected activity and the adverse employment action. Harris filed an EEOC charge, which is considered a protected activity, and she was terminated (the adverse employment action) approximately 5 months after filing. When showing a causal link, however, there must be more involved than merely a short span of time. Harris also presented evidence that other retaliatory conduct occurred during this period.
Second, since the plaintiff offered evidence of a retaliation claim, the burden shifts to Ford to show a legitimate, nondiscriminatory reason for its actions. Ford alleges that placing Harris on a PEP and then terminating her employment was legitimate and nondiscriminatory because her performance reviews consistently identified Harris as falling within the bottom quartile of her peer group; testimony from her supervisors demonstrate that she struggled with her job performance; and after Harris was placed on a PEP, she failed to achieve any of her goals.
Third, because Ford offered evidence of a legitimate, nondiscriminatory reason for terminating Harris, the burden shifts back to the plaintiff to show that the employer's reasoning "had no basis in fact", "did not actually motivate the employer's action", or was "insufficient to motivate the employer's action." Harris offered evidence that her reviews became negative only after filing the EEOC charge and that certain goals listed on her PEP were dependent on responses from suppliers or coworkers, and thus not under her control and possibly set her up to fail.
The Court ruled that Harris presented evidence on which a reasonable jury could conclude that Ford retaliated against Harris for filing a charge of discrimination with the EEOC, reversed the summary judgment in favor of Ford, and remanded the case to the district court.
The Sixth Circuit found: 1) a genuine dispute of material facts regarding whether Harris could perform the essential requirements of her job from a remote location via telecommuting; and 2) sufficient evidence on which a reasonable jury could conclude that Ford retaliated against Harris for filing a charge of discrimination with the EEOC. The court reversed the summary judgment in favor of Ford on both issues, and remanded the case to the district court.
By reversing and remanding summary judgment in favor of Ford as to whether there is a genuine dispute of material fact regarding whether Harris can perform all of her job duties from a remote location, the Sixth Circuit has reinforced the possibility of extending the scope of technology, specifically telecommuting arrangements, for accommodations allowable under the ADA. With this decision, the Court has proposed that communications technology has advanced enough to deem physical presence at a physical facility not necessarily essential for all positions. Accordingly, employers in the Sixth Circuit may be expected to provide evidence that telecommuting is not a sufficient substitute for physical presence.