By Caroline J. Berdzik, Esq., Sean P. Beiter, Esq. and Matthew C. Van Vessem, Esq. of Goldberg Segalla LLP
In a 2-1 decision, the Sixth Circuit in EEOC v. Ford Motor Co., No. 12-2484 (6th Cir. April 22, 2014) has dealt employers a blow regarding the extent to which a company must reasonably accommodate an employee with a disability. In this particular case, the employee sought a four-day-per-week telecommuting arrangement. Even though Ford found in its business judgment that this was not a workable arrangement, the court disagreed, noting that due to modern technology, the types of jobs where employees can fulfill all essential requirements while working remotely has significantly increased.
The employee in this case was a resale buyer for Ford from 2003 to 2009 and the job required her to work in a group to troubleshoot issues. Although Ford had a telecommuting policy that permitted employees to work up to four days each week from a telecommuting worksite, several other resale buyers only telecommuted one day each week. The employee had irritable bowel syndrome, which worsened over time. She took some intermittent FMLA leave and then was permitted to work a flex-time telecommuting schedule during a trial period. Ford found this to be problematic due to her inability to work constant and predictable hours. The employee then requested that she be permitted to work up to four days telecommuting as a reasonable accommodation.
Ford considered her request and offered the option of moving her cubicle closer to the restroom or finding an alternative position in the company, as it determined the four-day-a-week telecommuting arrangement would not be workable in her current position. The employee filed a charge of discrimination with the EEOC and then the EEOC sued on her behalf. Although Ford was granted summary judgment at the trial court, the EEOC appealed and the Sixth Circuit reversed.
The Sixth Circuit rejected Ford’s arguments for two main reasons:
· The court found that Ford had failed to demonstrate that her physical presence at work was an essential function of the job or that the telecommuting would cause an undue hardship. In addition, the court held that her position did not require face-to-face interactions with customers, and in a troubling statement for employers opined, “we are not persuaded that positions that require a great deal of teamwork are inherently unsuitable to telecommuting arrangements.”
· Ford’s argument concerning her potential unavailability during meetings or for other urgent matters was also rejected because the court stated that this type of arrangement would be different than a flex-time arrangement and the employee would be available during working hours.
The court said in part that it would not allow employers to redefine the essential functions of a position for its own benefit, which suggests that courts are moving away from deferring to an employer’s business judgment when evaluating reasonable accommodation requests by employees. Employers who have telecommuting arrangements should carefully review their telecommuting programs to make sure that they are specifically tailored and narrowly drawn. Further, if face-to-face interactions are a requirement of a position, that information should be listed as an essential function in the job description.
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