A version of this article was originally published in the June 2015 issue of The HR Specialist. It is reprinted here with permission.

An en banc panel of the Sixth Circuit Court of Appeals (Court) recently upheld the trial court’s grant of summary judgment in favor of Ford Motor Company in EEOC v. Ford Motor Company, on the basis that telecommuting was not a reasonable accommodation under the Americans with Disabilities Act for an employee suffering from a debilitating disability because on-site attendance was an essential function of the plaintiff’s job (see our prior coverage of the case).

After the trial court had granted summary judgment in favor of Ford, a three-judge Court panel, in a 2-1 decision, reversed and remanded the case back to the trial court. Ford requested an en banc hearing in late August 2014 and the Court granted Ford’s request. 

The plaintiff, Jane Harris, was terminated as a resale steel buyer (Buyer) at Ford after she asked to telecommute up to four days per week to control her irritable bowel syndrome (IBS). The EEOC brought suit alleging that Ford discriminated against plaintiff on the basis of her disability and retaliated against her for filing a charge with the EEOC. 

Plaintiff had been a Buyer at Ford since 2003. Buyers serve as intermediaries between the companies that use steel to produce parts for Ford and the steel suppliers themselves. Buyers respond to emergency supply issues to ensure continuous supply to the part manufacturers. Ford argued that an essential function 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” when a problem arose. It was Ford’s business judgment that such meetings were best handled face-to-face, and Ford required the Buyers to work in the same building as the parts manufacturers for that very reason. Plaintiff worked in her job until September 2009 when she was terminated for subpar performance and high absenteeism.

The Court framed the issue as “[i]s regular and predictable on-site job attendance an essential function (and a prerequisite to perform other essential functions) of Harris’ Resale-Buyer job?” The en banc Court answered that question in the affirmative.

The EEOC had argued that plaintiff’s testimony, the other Buyers’ telecommuting practices and the existing state of technology all created a genuine dispute of fact as to whether on-site attendance is essential. The Court rejected all three of the EEOC’s arguments. 

Initially, the Court recognized that the general rule - regularly attended work on-site is an essential function to most jobs, especially interactive positions - aligns with the text of the ADA and is also supported by the EEOC’s own regulations. As far as plaintiff’s testimony, the Court held that an employee’s unsupported testimony that she could perform her job functions from home does not preclude summary judgment. The Court stated that employees are not permitted to define the essential functions of their position “based solely their personal viewpoint and experience” because if that were true, “every failure-to-accommodate claim involving essential functions would go to trial.” The Court further distinguished Harris’ testimony because she could not confirm that her face-to-face interactions at work could be performed as effectively off-site.  Harris’ testimony did not rebut the uniform record evidence that a Buyer could not work from home on an unpredictable basis without lowering production standards.

Second, the evidence did not support the EEOC’s argument that since Ford allowed several other Buyers to telecommute, their attendance at the worksite must not have been essential. Harris’ coworkers who were permitted to work from home did so on materially different schedules, usually one set day per week and sometimes even less. Furthermore, these Buyers also agreed in advance to come into work on a telecommuting day if they were needed at the worksite.  Harris’ requests for an accommodation were a “far cry” from her coworkers since she requested up to four days per week, would not schedule the particular days in advance, and refused to come on-site if needed to do so. As a result, the record evidence did not create a genuine issue of fact that would preclude summary judgment. 

The Court further opined that if the EEOC’s position was held to be valid, “once an employer allows one person the ability to telecommute on a limited basis, it must allow all people with a disability the right to telecommute on an unpredictable basis up to 80 percent of the week (or else face trial).” This would essentially cause employers to tighten their telecommuting policies rather than provide them as an accommodation to employees.

Lastly, although the Court stated that the EEOC’s technology argument had “commonsense charm,” it ultimately failed to create a genuine issue of fact. The EEOC’s position was without citation to any record evidence or any case law that would support it. The Court agreed that, generally speaking, advanced technology allows employees to perform some essential job functions from the home. But this general proposition did not find support on the record before it. The Court held that this “great technological shift” did not make regular in-person attendance a marginal requirement for the Buyer job. The record did not establish that Harris could regularly and predictably attend the workplace, which was an essential function and a prerequisite to other essential functions, even with Ford’s past reasonable accommodations of telecommuting trials and specialized plans to improve her attendance. The Court reasoned that “Harris’ proposed unpredictable, ad hoc telecommuting schedule was not reasonable because it would have removed at least one essential function from her job.”  Therefore, no reasonable jury could find that Ford terminated Harris for other than her poor performance - which was well documented as she failed to update spreadsheets, complete paperwork, schedule training sessions, price items correctly and finish work in a timely manner. She was also consistently ranked in the bottom 10 percent of her Buyer group, both before and after she filed a charge with the EEOC. The EEOC could not present evidence that “but for” the protected activity of filing a Charge, Ford would not have fired Harris. Ford was thus entitled to summary judgment on the retaliation claim as well.

It appears that the en banc Court ultimately got it right. Nevertheless, employers should recognize that with advances in technology, telecommuting could be a reasonable alternative to attendance at the employer’s workplace. It is extremely important for employers to make certain that their job descriptions clearly delineate the essential functions required, including that “attendance” means being present at the employer’s facility and not at some off-site location. This is especially relevant when interaction with coworkers is an essential function for a particular position. Finally, employers should evaluate existing telecommunication policies and determine which job classifications are, and are not, suitable for this type of accommodation.