Wednesday, May 6, 2015

6th Circuit Holds That Regular and Predictable On-Site Job Attendance is an Essential Function

An often very difficult analysis when it comes to disabled employees is the issue of reasonable accommodations.  A recent decision out of the Court of Appeals for the Sixth Circuit discusses the issue in-depth, but to the peril of the employee-plaintiff.


The plaintiff, Jane Harris, was a resale buyer (i.e., a resale buyer of steel who purchases raw steel from steel supplies and then resells the steel to parts manufacturers known as "stampers") who suffered from rather severe irritable bowel syndrome ("IBS").  Harris worked for Ford Motor Company for a little over 6 years and won a few awards, being recognized for her "strong commodity knowledge" and "diligent" work effort.  However, over time, Harris' performance began to sink, and her attendance became unreliable, with her IBS contributing to the situation.

When Harris' IBS became so severe that she couldn't even make the hour drive to work, Ford tried to help by adjusting her schedule to help her establish regular and predictable attendance.  Toward that end, Harris was allowed to telecommute on an ad hoc basis in an "Alternative Work Schedule."  However, this did not succeed as Harris was never able to ultimate establish regular and consistent work hours and "failed to perform the core objectives of the job."  Ford then tried its "Workplace Guidelines," which is a reporting tool specially designed to help employees with attendance issues tied to illnesses.  These also failed.  However, even though both of these attempts failed, Harris still requested leave to work up to 4 days per week from home.  After all, she had been allowed to do it before, Ford's policy also said her job was appropriate for it, and several of her coworkers telecommuted.  As the Court would show and discuss, after discussing Harris' job in-depth, this was held to not be a reasonable accommodation because the employer's judgment as to Harris' attendance as an essential job function--evidenced by their words, policies, and practices and taking into account all relevant factors--is "job-related, uniformly-enforced, and consistent with business necessity."

Harris believed telecommuting was a reasonable accommodation, and the Equal Employment Opportunity Commission ("EEOC") agreed and filed suit on her behalf, alleging Ford failed to reasonably accommodate Harris' disability and that it discharged her in retaliation for filing her charge, both in violation of the Americans with Disabilities Act ("ADA").  The district court granted Ford's motion for summary judgment concluding that "working from home up to 4 days per week is not a reasonable" accommodation under the ADA and that "the evidence did not cast doubt on Ford's stated reason for terminating Harris' employment: poor performance."  The EEOC appealed, and a divided panel of the 6th Circuit reversed on both claims.  Review was granted en banc, vacating the panel's decision.

Reasonable Accommodation

The 6th Circuit, like most court of appeal decisions begin, discussed the ADA and reasonable accommodations, at-length.  The Court noted that Ford had a duty to reasonably accommodate Harris, if she is "qualified."  To be "qualified" under the ADA, Harris must have been able to "perform the essential functions of [a resale buyer]" "with or without reasonable accommodation."  A "reasonable accommodation" may include "job restructuring and part-time modified work schedules,
 but it does not include removing an "essential function" from the position, for that is per se unreasonable.   Harris was ultimately held to not be a "qualified individual" because her excessive absences prevented her from performing the essential functions of a resale buyer, and also, in a broader context, held that regular and predictable on-site job attendance is an essential function (and a prerequisite to perform other essential functions) of Harris' resale-buyer job.

The 6th Circuit obviously did not make a bright line rule and stated, "Much ink has been spilled establishing a general rule that, with few exceptions, 'an employee who does not come to work cannot perform any of his job functions, essential or otherwise'"  (Emphasis added).  Further, the 6th Circuit wrote, "That general rule ... aligns with the text of the ADA.  Essential functions generally are those that the employer's 'judgment' and 'written job description' prior to litigation deem essential.  And in most jobs, especially those involving teamwork and a high level of interaction, the employer will require regular and predictable on-site attendance from all employees (as evidenced by its words, policies, and practices)."

The Court held that the EEOC could not show that regularly attending work was merely incidental to Harris' job because it was essential to her job and that the employee bears the burden of proposing an accommodation that will permit her to effectively perform the essential functions of her job.  However, Harris only proposed one accommodation and that accommodation sought to eliminate an essential functions from her job therefore making it unreasonable.  The Court then showed how Harris' previous attempt at telecommuting failed and how her coworkers seldom telecommuted.

Because the Court concluded Harris was unqualified for her position then made it unnecessary for them to consider whether Ford showed bad faith in the discussions to work out a reasonable accommodation while Harris was still employed, but they did anyway and discussed how Ford did attempt to work with Harris a couple of times to allow her to regularly and predictably attend work, to no avail. 

Retaliation Charge

Given Harris' slipping performance and her failure to improve under a performance plan, the Court held that no reasonable jury could have found that Harris' EEOC charge was the reason she was terminated (i.e., "but-for" her charge, she would not have been terminated).

The case is EEOC v. Ford Motor Co., No. 12-2482 (6th Cir., Apr. 10, 2015)

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