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En Banc 6th Circuit Returns to Practicality, Finding Regular and Predictable Attendance to be Essential Function of Position

On April 13, 2015 by Schnader in Labor and Employment

By Scott J. Wenner

In May 2014, we reported on an opinion of a divided panel of the Court of Appeals for the Sixth Circuit embracing the position of the Equal Employment Opportunity Commission (EEOC) that virtual full-time telecommuting could be a reasonable accommodation under the Americans with Disabilities Act (ADA) for an employee whose irritable bowel syndrome rendered her unable to maintain regular attendance at work.  The EEOC’s argument and the panel’s opinion both relied on assumptions that advances in technology required the abandonment of precedents permitting employers to require regular physical attendance at the workplace, while giving short shrift to the substantial evidence supporting the business judgment of the employer, Ford Motor Company, that personal interaction was a necessary part of the plaintiff’s job.  The panel’s reasoning was encapsulated in the following quote from the opinion: “the law must respond to the advance of technology in the employment context as it has in other areas of modern life, and recognize that the ‘workplace’ is anywhere that an employee can perform her job duties.”

In late August 2014, the appellate court vacated the controversial panel decision and set it for review by the entire Sixth Circuit bench.  The en banc opinions – a majority opinion by the panel’s dissenter and a dissent by the author of the vacated panel opinion – were announced on April 10th.  The majority found that the EEOC was unable to prove that the employee in question, Jane Harris, was a “qualified individual” under the ADA because the evidence showed “that Harris cannot regularly and predictably attend the workplace – an essential function, and a prerequisite to other essential functions. . . .” In reaching this conclusion, the majority found that the EEOC’s evidence failed to create a genuine issue of fact over whether on-site attendance was essential to performance of her job duties. First, it discounted Harris’s own testimony that physical attendance was not essential based both on Circuit precedent that self-serving testimony of this nature is given little weight and because she failed to establish that she could perform all of her duties remotely without lowering production standards – a consequence that employers need not endure.  (29 C.F.R. § 1630, App. At 395-396).  Secondly, the court rejected the EEOC’s argument that by permitting others to work from home (on one fixed day per week at most) Ford admitted that in-person attendance was not essential. Observing that Harris’s telecommuting demand was for four days per week that were not scheduled in advance, and that every person allowed to work from home one day per week was required to come to work on their fixed telecommuting day upon request, the majority found that what Harris had demanded was too dissimilar to the telecommuting privileges given to others to be of value to her claim.

The final prong of the EEOC’s argument that attendance was nonessential to Harris’s job was its literally naked appeal to technology, contending (without citation to the record or case law) that it is “self-evident” that “technology has advanced” sufficiently for employees to perform “at least some essential functions” from home.  The majority observed that the EEOC no doubt is correct: as an abstract proposition technology has advanced.  However, it added, “[t]he proper case to credit advances in technology is one where the record evinces that advancement. There is no such evidence here.”   Indeed, “email, computers, telephone and limited video conferencing were equally available when courts around the country uniformly held that on-site attendance is essential for interactive jobs.”

Concluding Thoughts

Although the Sixth Circuit’s en banc decision no doubt comes as a relief to employers that are concerned about telecommuting imposed by fiat, Ford Motor Company represents only a preliminary skirmish is what is likely to be a more protracted battle with the EEOC and other employee advocates.  It is fair to read the majority opinion as more about evidentiary requirements than about the substance of the ADA – as confirming that the EEOC cannot rely on platitudinous and “self-evident” propositions, at least without producing evidence to validate and link them more specifically to the issues in dispute.  For the opinion certainly suggests that had the EEOC produced competent evidence that specific technologies that are available that would permit the duties of Ms. Harris’s interactive position to be performed as effectively at home as on-site, the majority would not have affirmed the district court’s entry of summary judgment in favor of Ford.  One can only anticipate that the next time the EEOC argues that telecommuting is a reasonable accommodation under the ADA, it will armed with evidence to support its generalized observations on the march of technology.

Finally, a focal point of the dissent – but mentioned only in passing by the majority – concerned the weight to be given to Ford’s judgment in identifying the essential functions of the position.  While the majority did not purport to give particular weight to Ford’s opinion, focusing instead on the deficiencies in the EEOC’s evidence, the dissent spent several pages arguing that the employer’s judgment is entitled only to consideration – not deference – and is but one of more than half a dozen factors the EEOC’s regulations suggest should be considered in deciding what functions are essential.  Responding to the dissent, the majority opinion agreed that merely because an employer deems a function to be essential does not make it so: blind deference is not the standard. However, summary judgment is required when “the 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.”

Like the debate over telecommuting, the debate over an employer’s freedom to identify which job functions are essential will continue as the EEOC aggressively inserts itself into what employers consider management decisions, including how a job is to be performed.

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