6th Circuit Holds Refusal to Allow Telecommuting Can Violate ADA

April 22, 2014. The U.S. Court of Appeals (6thCir) released its divided opinion [32 pages in PDF] in EEOC v. Ford Motor Company, a case regarding telecommuting and the Americans with Disabilities Act (ADA).

The Court of Appeals reversed the District Court's grant of summary judgment to the employer, Ford, on the EEOC's claims of employment discrimination and retaliation. This opinion holds that employers may be required to allow employees who cannot because of a disability make it to the worksite to telecommute instead, even on an unfixed schedule to be determined by the employee, and even for jobs that the employer determines must be performed at the workplace or other designated locations.

Introduction. Telecommuting can provide benefits to businesses through lower costs and greater worker productivity. It can provide benefits to employees who will spend less time commuting, and may prefer to work at home for family or other reasons. It also provides positive externalities through lower congestion on roads and rails, and less pollution. However, federal, state and local governments have often created disincentives to telecommuting in the private sector.

With this opinion, the 6th Circuit finds that the federal government can impose telecommuting on businesses under the rubric of enforcement of the Americans with Disabilities Act (ADA), enacted in 1990.

This case involves Title I of the ADA, which bans discrimination in employment. Most of the debates involving information and communications technology (ICT) and the ADA have involved Title III, which bans discrimination in public accommodations, such as restaurants and hotels. There has been debate because some courts and government agencies interpret public accommodations to include web sites, software and/or ICT devices.

Also, in 2010 the Congress enacted a sweeping bill to expand the Federal Communications Commission's (FCC) authority to regulate, in the name of disability access, certain software, computers, electronic devices, and services that are used for communications.

Title III was enacted to increase access of persons with mobility disabilities to public places. That is, it was primarily enacted to force businesses to provide curb cuts, wheel chair ramps, elevators and other accommodations for persons in wheel chairs. Subsequent debates have focused on expanding by interpretation the meaning of Title III to cover access of persons with sight and hearing disabilities to ICT devices and services.

Title II bans discrimination by state and local governments. Title IV regulates telecommunications services for hearing and speech impaired persons. See, story titled "Summary of the ADA" in TLJ Daily E-Mail Alert No. 2,080, April 26, 2014.

The ADA has a troubled history. Its many supporters heap praise upon it. On the other hand, during the 1990s, economists published research papers in peer reviewed economics journals that reported the results of econometric analysis of employment and disability employment data collected by government agencies. The papers demonstrated that the ADA had caused a decrease in disability employment. That is, Title I has been counter productive to its stated goal.

This is a Title I employment discrimination case that finds that employers can be found to have discriminated for not allowing employees who cannot perform work duties at the location designated by the employer to perform those duties remotely with the aid of ICT.

This opinion, if followed in this and other circuits, is certainly not in the best interests of businesses, which will lose a degree of control over the management of their businesses. This opinion is likely not in the best interests of individuals with disabilities either. This is because employers would become less likely to hire people with disabilities for fear that they might be compelled into allowing telecommuting when work responsibilities cannot effectively be performed remotely. Employers would hire fewer persons with disabilities in the first place.

Facts. Ford hired Jane Harris as a resale steel buyer. The majority, which recited the facts in a manner most favorable to its finding that the District Court's grant of summary judgment was in error, wrote that this job involved "periodic site visits to observe the production process", and meetings with the suppliers. The Court continued that Ford determined that "such meetings were most effectively handled face-to-face, and that email or teleconferencing was an insufficient substitute for in-person team problem-solving".

Harris suffered from worsening irritable bowel syndrome (IBS), "an illness that causes fecal incontinence". The Court elaborated that "her symptoms worsened and, on particularly bad days, Harris would be unable even to drive to work or stand up from her desk without soiling herself".

Her work quality suffered, including her at home work.

She requested that she be permitted to telecommute on an as needed basis as an accommodation for her disability. Ford had a telecommuting policy that authorized employees to work up to four days per week from a telecommuting site. However, this policy also stated the telecommuting is not appropriate for all positions.

Ford instead offered her various alternative accommodations at the work site. She then filed a complaint with the federal Equal Employment Opportunity Commission (EEOC) alleging discrimination in violation of the ADA. Several months later, Ford terminated Harris.

The EEOC eventually filed a complaint against Ford in the U.S. District Court (EDMich) alleging failure to accommodate Harris's disability, in violation of 42 U.S.C. § 12112, and retaliation for filing a complaint with the EEOC, in violation of 42 U.S.C. § 12203.

The District Court granted summary judgment to Ford on both claims. It found that Harris was unqualified, and that Ford had not failed to offer reasonable accommodations. The EEOC brought the present appeal.

Statute. Title I, at Section 12112, provides, in relevant part, that employers shall not discriminate against a qualified individual on the basis of disability, and that discrimination includes not making reasonable accommodations for a qualified individual who has a disability.

The present case involves several issues, including whether Harris is a qualified individual, and whether or not allowing unscheduled teleworking constitutes failure to make reasonable accommodations.

Section 12112(a) provides that "No covered entity shall 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."

Subsection (b) then provides that discrimination includes "not making reasonable accommodations to the known physical or mental limitations of an otherwise qualified individual with a disability who is an applicant or employee, unless such covered entity can demonstrate that the accommodation would impose an undue hardship on the operation of the business of such covered entity".

Majority Opinion. Judge Karen Moore, joined by Judge Jeffrey Helmick (USDC/NDOhio sitting by designation), wrote the majority opinion reversing the judgment of the District Court on both claims.

She wrote that there are material issues of fact that preclude summary judgment by the District Court. Hence, the case goes back to the District Court for further proceedings.

She concluded that the EEOC could show that Harris was qualified.

She conceded that the 6th Circuit "previously concluded that telecommuting is not a reasonable accommodation for most jobs," except in unusual cases, citing Smith v. Ameritech, 129 F.3d 857 (1997). But, she continued "the class of cases in which an employee can fulfill all requirements of the job while working remotely has greatly expanded". Although, she did not elaborate on the developments in ICT.

She later wrote that "communications technology has advanced to the point that it is no longer an ``unusual case where an employee can effectively perform all work-related duties from home.´´"

Thus, Judge Moore has held that communications technology has changed in the last 16 years. Moreover, this changes how the ADA must be applied.

This provides very little guidance to the District Court, or to employers, regarding when, and under what circumstances, an employer must allow a disabled employee to telecommute. This provides very little guidance regarding what technology based solutions must be offered to the employee.

Dissent. Judge George McKeague wrote an opinion in which he dissented on both claims. He argued that "This court's precedent clearly states that an employee who cannot satisfy an employer's basic attendance requirements is unqualified under the ADA as a matter of law."

Moreover, he wrote that "The EEOC has simply failed to show that Harris could perform the essential functions of her job while telecommuting up to eighty percent of the workweek, or four out of five days, on an unpredictable schedule."

He also wrote that "we addressed whether the ADA compels employers to provide work-at-home arrangements in Smith v. Ameritech, and held that an employee’s requested accommodation to telecommute, in light of his job duties, was unreasonable as a matter of law."

Case Information. This case is EEOC v. Ford Motor Company, U.S. Court of Appeals for the 6th Circuit, App. Ct. No. 12-2484, an appeal from the U.S. District Court for the Eastern District of Michigan at Ann Arbor, D.C. No. 5:11-cv-13742, Judge John O'Meara presiding.

Judge O'Meara and Judge Moore were appointed by former President Clinton. Judge McKeague was appointed by former President Bush. Judge Helmick was appointed by President Obama.

(Published in TLJ Daily E-Mail Alert No. 2,651, May 1, 2014.)