Client Bulletin #554

Last Friday, the full U.S. Court of Appeals for the Sixth Circuit found in favor of Ford Motor Company in a disability discrimination lawsuit brought by the Equal Employment Opportunity Commission. The decision is a big win for Ford, and for all employers.

The EEOC claimed that Ford should have allowed an employee who had a severe case of irritable bowel syndrome to telecommute most of the time, even though her job duties required in-person contact with suppliers and computer work that could not be easily done from a remote location.

(The Sixth Circuit hears appeals from federal courts in Kentucky, Michigan, Ohio, and Tennessee.)

Rejecting the EEOC’s arguments and overturning an earlier decision against Ford by a three-judge panel of the Sixth Circuit, a majority of the 15 judges for the full Court held that regular, predictable, on-site attendance is necessary to be “qualified” for jobs requiring team work and interactive behaviors. The majority, citing the statute, regulations, other courts’ opinions and the “sometimes forgotten guide” of common sense, said regular in-person attendance is an essential function -- and a prerequisite to essential functions -- of most jobs.

For more background on the EEOC v. Ford case, visit Constangy’s blog, Employment & Labor Insider, here and here.

Pause here to consider the Court’s analysis -- the Americans with Disabilities Act requires that an employer engage in interactive dialogue concerning reasonable accommodation with qualified individuals with a disability who can perform the essential functions of the job, with or without reasonable accommodation. The Court found that the EEOC did not get past the first and preliminary inquiry -- whether the employee was qualified.

There is no question that she was disabled. She had debilitating irritable bowel syndrome. For several years her attendance was poor by any standard. In 2008 she missed 1.5 days of work per week. In 2009 she was absent more than she was present. Ford supervisors worked with her for years, trying telecommuting three times and a performance improvement plan. Her job performance deteriorated, and co-workers had to pick up the slack.

The employee testified by affidavit that 95 percent of her job, whether on site or remote, consisted of email or computer use. (Ford had evidence to the contrary.) The EEOC and the five dissenting judges would have allowed the employee’s testimony to create a “genuine issue of material fact,” preventing Ford from winning summary judgment and meaning that the case would go to trial. Importantly here, the majority rejected that proposition, holding “an employee’s unsupported testimony that she could perform her job functions from home does not preclude summary judgment, for it does not create a genuine dispute of fact.” This is a critical ruling for real world job design and real world litigation.

The EEOC asserted it was “self evident” that technology had advanced to the point that at least some essential functions could be performed at home. The Court agreed, in the abstract, but found the record in this case could not support such a finding. The Court said that its ruling had to be based on the evidentiary record in the case, not abstract assertions.

The dissent conceded, sort of, that regular predictable attendance was an essential function of a job where equipment or other materials necessary to do the job were found only on site, or where the job involved direct services to clients or customers. This is an important concession.

Thus, despite advances in technology and remote work and depending on the employee’s job duties, an employee may not be “qualified” within the meaning of the ADA if the employee can’t come to work. Because the employee in this case was not “qualified,” the majority did not even get to the issue of reasonable accommodation. The dissent discusses its perception of Ford’s failings in this regard at great length, and in this writer’s opinion, completely disregards all the things Ford did do, focusing instead only on the last proposal from the plaintiff -- that she be allowed to work for “up to four days a week” from home. By the time this came to the table, Ford had worked with her for years as her attendance got worse and her job performance deteriorated.

Now, before employers and defense lawyers read too much into this opinion, consider three things. First, Ford worked with this individual for years, tolerating attendance that a smaller employer probably could not tolerate. Second, although a District Court in Michigan granted summary judgment to Ford initially, the majority of the three-judge Sixth Circuit panel ruled in favor of the EEOC, finding summary judgment even on these facts to be improper. Ford had to go to the full panel of 15 judges to win, and even there, five judges dissented. Third, the EEOC has demonstrated time and again that it does not consider itself bound by decisions of the federal appellate courts, and thus can be expected to continue to argue that folks don’t need to come to work if they have a disability. Ford Motor Company clearly decided it had to stand up to the EEOC and maintain control of its workplaces. The employer community should say “thank you” to Ford.

With those caveats, this is an important ruling, not least because the Court used common sense -- regular, predictable attendance is required to perform the essential functions of jobs involving interactive behaviors with co-workers and managers, jobs involving equipment and materials located only on site, and jobs requiring direct interaction with customers and clients. Consider these things when designing the jobs in your workplace.

If you need assistance with your review, please contact any member of Constangy’s Litigation Practice Group, or the Constangy attorney of your choice.

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