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Appeals court redefines "the workplace"

Appeals court redefines the workplace

Crystal Spraggins, SPHR

The Americans with Disabilities Act (ADA) requires employers to offer reasonable accommodation to employees with disabilities who can perform the essential functions of the job. An employer is acting within the law when it provides an accommodation that meets the definition of reasonable, even if the accommodation is not exactly what the employee requested. And, until recently, employers also had one given—showing up for work was pretty much guaranteed to be considered an essential job function.

Which is not to say that a temporary leave of absence could never be considered a reasonable accommodation. It could and can. However, an employer generally would be within its rights to turn down a request for an open-ended telecommuting arrangement. 

Again, until recently.

EEOC v Ford Motor Co

Jane Harris, a resale steel buyer at Ford Motor Company, requested telecommuting as a reasonable accommodation so as to better control the symptoms of irritable bowel syndrome.

Ford refused the request, concluding that Harris’ job was not suitable for telecommuting. Harris had been telecommuting on a trial basis, and there was some evidence that Ford considered the trial to be unsuccessful.

So instead, Ford offered two alternate accommodations: an office move that would place Harris closer to the restroom and a suggestion that Harris seek another job within the company that would be more suitable for work at home. Harris rejected both offers and filed a claim with the EEOC.

A few weeks later, Harris was placed on Ford’s Workplace Guidelines, a tool used by supervisors to help employees with their attendance issues. In addition, Harris’ supervisor initiated weekly meetings to discuss Harris’ performance. According to the court documents, “Harris felt threatened during these meetings because they were one-on-one, closed door sessions, during which Gordon used ‘military style yelling’ and refused to allow her to leave the room.”

Harris was later given a poor performance evaluation and placed on a “Performance Enhancement Plan.” When the 30-day plan period ended, with management determining that Harris hadn’t met any of her goals, her employment was terminated.

Harris then filed suit on the grounds that her rights under the ADA had been violated and that Ford retaliated against her for filing the EEOC claim.

What is “the workplace,” anyway?

Reasoning that Harris was not a “qualified” individual on the basis of her excessive absenteeism, the district court granted summary judgment in favor of Ford. The court also noted a reluctance to second-guess Ford concerning whether Harris’ job was suitable for telecommuting and found that Harris’ “request to telecommute up to four days per week was not a reasonable accommodation for her position.”

The appeals court reversed that decision, however, noting that Harris was indeed qualified and stating:

“When we first developed the principle that attendance is an essential requirement of most jobs, technology was such that the workplace and an employer’s brick-and-mortar location were synonymous. However, as technology has advanced in the intervening decades, and an ever-greater number of employers and employees utilize remote work arrangements, attendance at the workplace can no longer be assumed to mean attendance at the employer’s physical location. Instead, 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 response to the case, attorney Eric Meyer offers employers three pieces of advice:

  1. Even though the court’s decision only controls the Sixth Circuit, the argument is appealing, and other courts throughout the country could certainly adopt it.
  2. Reassess job descriptions to determine whether a physical presence in the workplace is an essential job function. However, to ensure that the new description(s) fits how work is actually done, get feedback from managers and employees.
  3. If you allow some employees to telecommute, be prepared for courts to assume that you’d consider telecommuting a reasonable accommodation.

Final words

What I find interesting about this case is that Ford did a lot right. However, hindsight being 20/20, I can see some problems as well. For example, despite Harris’ illness, which was a constant throughout her tenure with Ford, she consistently received favorable reviews, up until her complaint with the EEOC. Hmmm …

Also (and HUGE DISCLAIMER, because I’m NOT an attorney), I think it ill-advised for company representatives to have closed-door meetings with employees when relationships are clearly adversarial. At the very least, have a witness present.

Finally, I’m not impressed with Ford’s suggestion that Harris seek alternate employment within the company. Another good job offer? Maybe. An invitation to apply for another job? Not so much. But perhaps I’m missing something …

Regardless, whatever happens next with this case should be noteworthy. 

 

 

 

3 Comments

  1. 3 Melanie 10 Jul

    Dear Bill,

                 Your situation is a very common problem here on the east coast as well. Age discrimation is rampant throughout our whole country even at 53 I worry about changing jobs it is sad. My only suggestion to everyone in the over 50 club  is watch your spending and do not live above your means, the home you may be able to afford today may not be the home you can afford tomorrow. And sure that nice new Mercedes is beautiful but do you really need it and will you be able to afford the payment when the going get's rough. These are all things we must think about, identifying our needs and wants. I know personally one of my wants is to retire at 62 and not have to struggle so I am frugal with my purchases. The less my employer has to hang over my head and my job the better off i am and the better off we Americans all would be. Learn to save thus we learn to live !

    Sincerely,

    Melanie Breech

  2. 2 Crystal Spraggins 27 Jun

    Hi Bill:

    Well, I hope you're wrong about the case. I hope another court hears it, OR Ford decides to throw in the towel. If the case has merit (as it appears to) it'd be a shame for the plaintiff to receive no justice at all. 

    Also, thanks for sharing your story. It seems apparent that the economy is still suffering, and more to the point, has changed/is changing, perhaps irrevocably. I wish you well, regardless.

    And with that, I think the appeals court made the right decision, because even if employers are reluctant to allow employees to work from home during regular working hours, no one can deny that there's a whole lotta work going on outside of normal working hours. So it may be that employers will be forced to consider (through cases like this) that they can't have it both ways. (No offense employers.)

     

  3. 1 Bill V 26 Jun

    The 16th District U.S. Appeals Court wrote:

    "...an ever-greater number of employers and employees utilize remote work arrangements..."

    Really?? Where would that be, then?

    I started working for a major Silicon Valley company in December 1999. The STC ad I responded to specifically mentioned telecommuting as an option; this was important to me, because my auto commute to Silicon Valley was very long — and since I am a technical writer/editor with a dedicated home office, broadband Internet connectivity, and the ability to do my own IT work on my setup, there was absolutely no logical, job-related reason why I had to be in the physical plant. Therefore, starting with just a day or two a week at first, about a year later I was given leave to work on a full-time telecommute basis. Then, about a year after that, I moved with company approval from California to a southwestern state (mostly for worsening pollen allergies in central-coast California) and continued to be a successful telecommuter from there for seven more years.

    Then, in late 2007, the Board's desire that the quarterly numbers look better and the stock price rise faster, the company's long-time CEO/COTB (a former HP executive) was forced to retire. He had been regarded with great respect and affection by the employees; in fact, over the preceding seven or eight years, the company had been voted into the Top 10 of the "Best Companies in America to Work For."

    A new, younger guy was brought in to fundamentally change the company's culture and "crack the whip." Before he had a chance to do much, however, the U.S. financial and housing meltdowns hit, the Great Recession was immediately underway, and the company's first-ever mass layoff was soon a reality. (During lean times in the past, the company had implemented employee-voted temporary progressive pay cuts.) In this event, though, the new CEO wanted to assert his position, I guess, and the layoff went down smoothly — at least from the company's point of view. I was "caught" working for a product-centric workgroup that was abolished in the accompanying reorganization, and I got axed, along with hundreds of others.

    After several years trying to find a company that would hire me under ANY terms (including moving back to CA), I finally gave up, realizing that the main reason I had been selected for layoff (after eight years of "Exceeds Expectations" performance reviews) was that I was simply too old and too expensive.

    As all of you doubtless know, suing under the federal age discrimination law is only rarely successful: first, because it is enormously expensive in terms of legal fees, which discourages potential plaintiffs; and second, because savvy employers and their high-priced lawyers know exactly how to get around the letter of the age-discrimination law and prove (often by means of subtly bogus "evidence") that they did so. LOL There was even a mandatory classroom course for managers in this company called "Managing Within The Law." As a non-manager, I didn't take the course, but one who did told me it should have been entitled "Managing Around The  Law." <snerk>

    I now find myself working as an independent contractor (no benefits, of course) for the SAME COMPANY, isolated from their internal records by being placed as a subcontractor under another contractor who had been vetted as being a real (i.e., SOX-proof) contractor by a third-party firm whose sole mission was to vet prospective contract workers for the client company and keep them out of trouble with the SOX laws, which would have rightly seen me as an "illegal employee." (I did not "qualify" for being a direct contractor myself.) They could have simply rehired me, of course, even making it conditional upon my moving back to CA at my own expense, and I would have taken it. But of course the company doesn't want to actually hire people — not me or anybody else, if they can help it. In my case, they need my unique skillset based on my years of experience with the company and its tech-writing style templates and guides (most of which I wrote and maintained), but they don't want to pay more for me than what they can get away with paying.

    Today, to the best of my ability to find out, telecommuting is no longer an employee option at this company; even the vast majority of contract workers are required to be on-site every day (I'm an exception to that rule, so far). Telecommuting hasn't been an option since the new CEO took over on the first day of 2008, as alluded to above.

    The same attitude, I am told, exists in virtually every other large Silicon Valley company in this same technology sector. For whatever reason(s), almost all employers see it as being in their interest to have employees on-site — and since employers, at least in Silicon Valley, hold all the cards right now (and for the foreseeable future), they can have it any way they want it. With few exceptions, employees are mostly at the mercy of their employers; they're just thankful as hell to have a job — any job.

    In my case, involuntary unemployment caused me to finally file Chapter 7 bankruptcy last year to make it possible to keep the mortgages on my house current with less than half my prior income. (My house is still slightly under water, but I have hopes of that changing over the next year or two.) Meanwhile, my entire asset base — 401(k)s, stocks, cash savings... all gone. My wife and I are now living month-to-month. At age 67, it is highly unlikely that I will ever be hired again. I'm on my own.

    In summary, then: I read everywhere that the telecommuting option is "increasing steadily," but I don't actually see that. I see the opposite. What's wrong with this picture?

    The poster wrote,

    "...whatever happens next with this case should be noteworthy."

    Take note, then: The case. IMO, will be appealed by Ford to SCOTUS, who will see it (in their usual right-wing 5–4 majority) as being something of a sleeping dog that they would ill consider publicly awakening, and remand the case back to the district court level to be reheard. This effectively overturns the Appeals Court decision without actually overturning it.

    I would be much surprised if the EEOC has the stomach to support the plaintiff in going through yet another round of litigation and appeals at multiple judicial levels; rather, I suspect she (and EEOC) would simply give up. As usual, then, the corporation beats the ordinary guy/gal simply because it has more money (OK, a LOT more), even when their legal position is untenable, or even just unreasonable — and because the current SCOTUS, given the choice, will always decide, 5-4, in favor of corporations. One way or another.

    Bill

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