April 13, 2015
On April 10, 2015, the United States Court of Appeals for the Sixth Circuit issued its much-anticipated en banc decision in Equal Employment Opportunity Commission v. Ford Motor Company. In the decision, the Sixth Circuit ruled that, under the Americans with Disabilities Act ("ADA"), physical attendance is an essential function of most jobs and thus employers generally need not provide unpredictable telecommuting arrangements as an accommodation. In affirming the District Court’s opinion granting summary judgment to Ford, the Sixth Circuit clarified that an employee’s subjective testimony alone is insufficient to raise a genuine issue of material dispute, and confirmed that an employer’s judgment regarding essential job functions will be respected when it is "job-related, uniformly-enforced, and consistent with business necessity." This ruling helps clarify for employers in the Sixth Circuit (and beyond) the extent to which they may be required to allow telecommuting as an accommodation under the ADA.
Gibson Dunn was co-counsel for Ford and argued the case in the court of appeals.
The Underlying Lawsuit
As recounted in the Court’s decision, the key facts in the case were as follows:
Ford employee Jane Harris sought to work from home on an ad hoc basis as an accommodation for her irritable bowel syndrome. Ford rejected this request after explaining to Harris that regular, predictable physical attendance was an essential part of Harris’s "steel resale buyer" position. Although Ford met with Harris to discuss her request several times and offered to accommodate Harris in other ways, Harris declined the other accommodations offered. She filed a charge of discrimination with the EEOC, alleging that the denial of her telecommuting request violated the ADA.
After Harris filed her EEOC charge, her attendance and performance issues worsened, and Ford ultimately terminated her employment. The EEOC sued Ford under the ADA, alleging that Ford unreasonably failed to accommodate Harris’s disability and that it fired her in retaliation for filing her employment charge.
Evidence adduced in discovery showed that Harris’s job at the Company was highly interactive and required extensive teamwork. Although some of these interactions occurred by phone or email, many required face-to-face meetings. Ford even placed resale buyers and employees in other positions in the same building so that they could engage in problem solving dialogues on a moment’s notice. Ford also submitted uncontradicted evidence that it permitted a very limited amount of telecommuting for resale buyers due to the highly interactive nature of that position.
For its part, the EEOC did not contest that Harris’s job required teamwork. Rather, it submitted Harris’s own testimony that she felt that she could do most of her work via email and telephone. The EEOC also pointed to Ford’s general telecommuting policy as evidence that some amount of telework was reasonable.
As to Harris’s retaliation claim, Ford submitted substantial evidence that Harris’s performance had declined steadily for years. Harris was placed on a performance enhancement plan and then was terminated when she failed to complete a number of elements of the plan. The EEOC did not dispute Harris’s poor performance, but emphasized the closeness in time of the EEOC charge and termination, and argued that the enhancement plan was too difficult and had set Harris up to fail.
On Ford’s motion for summary judgment, the District Court concluded that Harris’s excessive absenteeism precluded her from seeking an accommodation under the ADA and that her proposal to work from home on an unpredictable schedule was not a reasonable accommodation in any event. It agreed that none of the evidence cast doubt on Ford’s stated reason for firing Harris: her poor performance.
The EEOC appealed, and a divided panel of the Sixth Circuit reversed on both counts. The panel majority determined that the EEOC had created issues sufficient for trial with respect to both the failure-to-accommodate and retaliation claims. Due to advances in technology, the Court emphasized, physical attendance at the employer’s location often no longer is necessary for employees to perform their jobs effectively. Ford successfully petitioned the Sixth Circuit to review the appeal en banc.
The En Banc Opinion
The full Sixth Circuit affirmed the District Court’s decision in full.
Failure To Accommodate
In affirming the District Court, the Sixth Circuit explained that only "qualified" individuals are entitled to receive accommodations under the ADA. To be "qualified," an employee must be able to perform the "essential functions" of a job with or without accommodation. After considering the text of the ADA, the EEOC’s regulations and guidance, and the "sometimes forgotten guide" of "commonsense," the Sixth Circuit concluded that the "general rule" is that "regularly attending work on-site is essential to most jobs, especially the interactive ones." "'[A]n employee who does not come to work,’" the Sixth Circuit explained, "’cannot perform any of his job functions, essential or otherwise’" because "’most jobs require the kind of teamwork, personal interaction, and supervision that simply cannot be had in a home office situation.’"
The Sixth Circuit held that there was no reason to depart from this general rule in this case because the record showed that there was no triable issue as to whether regular and predictable on-site attendance was an essential part of Harris’s job. In reaching this determination, the Sixth Circuit considered evidence regarding the teamwork and in-person meetings that Ford expected its resale buyers to engage in; that Ford had placed resale buyers and other personnel in the same building so they could interact regularly; that Ford’s telecommuting policy contained important constraints and limitations; and that Harris’s excessive absenteeism caused her to make mistakes and burdened her coworkers. The Court also explained that, while technology has changed, it has not changed so much as to make a difference in this case.
As to Harris’s testimony that she thought she could perform her job at home, the Sixth Circuit concluded that such "unsupported testimony" is not enough to create a genuine dispute of fact. If the rule were the otherwise, the Court explained, "every failure-to-accommodate claim involving essential functions would go to trial because all employees who request their employer to exempt an essential function think they can work without that essential function."
The Court also clarified that, while its ruling did not require "blind deference" to an employer’s stated judgment, it did "require granting summary judgment where an employer’s judgment as to essential functions–evidenced by the employer’s words, policies, and practices and taking into account all relevant factors–is job-related, uniformly-enforced, and consistent with business necessity."
Because the Sixth Circuit concluded that Harris was unqualified for her position in light of her excessive absenteeism, it determined that it did not need to address whether Ford made appropriate efforts to provide an accommodation. It nevertheless credited Ford for acting in good faith by meeting with Harris several times and offering potential accommodations, even though Harris–not Ford–bore the burden of recommending accommodations.
Retaliation
The Sixth Circuit also held that there was no genuine issue of material fact as to whether Ford retaliated against Harris for filing a charge of discrimination. It explained that, to assess retaliation claims, courts must consider whether the allegedly retaliatory measure would have been taken if the employee had not complained; whether the employer had a non-retaliatory reason for its action; and whether the employee could proffer evidence that this reason was a mere pretext for retaliation. The Court explained that the evidence did not show retaliation at any step because of the undisputed evidence of Harris’s poor performance and excessive absenteeism.
Although the Court noted that Ford’s decision to terminate Harris’s employment four months after she filed the charge gave it some "’pause,’" "’temporal proximity alone cannot be the sole basis for finding pretext.’" And it again determined that an employee’s own opinion as to whether her employer was acting appropriately was insufficient to raise a genuine issue of material fact to defeat summary judgment.
Practical Ramifications for Employers
The Sixth Circuit’s decision provides useful guidance to employers in several respects.
First, the decision sheds light on whether and when employers may need to permit employees with disabilities to work from home. Consistent with similar decisions in other circuits, this case confirms that attendance will usually be considered an essential function for most jobs, and that employees generally cannot demand unpredictable telecommuting schedules as an accommodation under the ADA.
Second, the Court rejected the theory–adopted in the earlier panel decision–that advances in technology had reduced employers’ need to require in-person attendance at work. This should help dispel the notion that the mere passage of time or the march of technological progress requires employers to rewrite job descriptions to eliminate traditional requirements such as in-person attendance.
Third, the case provides employers with some comfort that they can adopt tailored telecommuting policies without fear that the policy will later be used as evidence that a particular job can accommodate any proposed schedule, no matter how burdensome. Indeed, the Sixth Circuit explained that the opposite rule would be "180-degrees backward," as it would "encourage[e]–indeed, requir[e]–employers to shut down predictable and limited telecommuting as an accommodation for any employee."
Fourth, from a litigation perspective, the case shows that employers are likely to receive some deference in defining the essential functions of a position, particularly when supported by existing policies and practices. In this case, for example, the Court deferred to Ford’s business judgment in light of the fact that Ford had in place a limited telecommuting policy that, as applied to the particular job at issue, did not permit employees to set their own schedules, as Harris had requested, or to telecommute as frequently as she wanted to. It also considered that Ford located resale steel buyers with other employees who worked together in the same building, thus confirming that the Company genuinely regarded physical attendance as necessary. Summary judgment will be granted, the Court said, "where an employer’s judgment as to essential job functions–evidenced by the employer’s words, policies, and practices and taking into account all relevant factors–is job-related, uniformly-enforced, and consistent with business necessity."
Fifth, the decision indicates that an employee’s subjective opinion about what a job requires will not be sufficient to survive summary judgment. That holding should help protect employers’ business judgment from routine second-guessing by employees in ADA cases.
Finally, with respect to retaliation claims, the Court confirmed that retaliation must be a "but for" cause of the adverse employment action and that firing an employee soon after she files a complaint is not necessarily evidence of retaliation. That ruling should give some comfort to employers managing an underperforming employee who has recently filed a complaint.
Gibson, Dunn & Crutcher’s lawyers are available to assist in addressing any questions you may have regarding these developments. Please contact the Gibson Dunn lawyer with whom you usually work, any member of the firm’s Labor and Employment or Appellate and Constitutional Law practice groups, or the following authors in the firm’s Washington, D.C. office:
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