Most practitioners know  that Title VII prohibits retaliation against any employee because he or she “opposed any practice made an unlawful employment practice [by the statute].”  Title VII does not define “oppose,” but the Supreme Court has held that it should have its ordinary meaning – “to resist or antagonize . . . ; to

On April 10, 2015, the 6th Circuit reached what many believe is the right decision and reversed its much–debated decision in EEOC v. Ford Motor Co., 752 F.3d 634 (6th Cir. 2014) from April 2014 – which had held that Ford had violated the Americans with Disabilities Act (“ADA”) by declining to allow an employee to telecommute (in other words, to work from home), whenever she wished.

Ford petitioned for en banc review of that decision, and on April 10 the panel issued a ruling that effectively gutted the prior ruling.

The panel cut to the core of the issue, by holding that “an employee who does not come to work cannot perform any of his job functions, essential or otherwise,” as “most jobs require the kind of teamwork, personal interaction, and supervision that simply cannot be had in a home office situation.”

We wrote about this case first in our 2014 Employer Express newsletter.  Ford employee Jane Harris suffered from irritable bowel syndrome, which she claimed limited her ability to function in the office.  She claimed that her symptoms were very severe, claims which Ford did not dispute.  After many absences, she asked Ford if she could work from home whenever her illness flared up.  Ford offered to accommodate her, but denied that specific accommodation. The biggest problem with her request, according to Ford, was the unpredictability of the telecommuting schedule and the fact that it could keep her out of the office as much as 4 days per week.  The company argued that she could not be effective if she was not present at work on a regular basis. There was also evidence that she had other work performance problems, which were not all related to her illness.

She filed an EEOC charge, but the poor attendance continued.  She was ultimately fired, and the EEOC brought suit on her behalf.

As the case proceeded through discovery Ford produced evidence that her job required meetings and “teamwork,” which Harris claimed she could accomplish via phone and email. Also, there was evidence that her absences caused stress and anxiety to co-workers and supervisors, who had to “pick up the slack” and perform her responsibilities when she was out of the office.

Ms. Harris disputed this.

Initially, Ford won summary judgment at the district court, which found that her proposal to work from home was NOT a reasonable accommodation.

On appeal, the Sixth Circuit reversed and determined that there were issues of fact on the ADA claim.  In a hotly-debated ruling, the Circuit held that – due to advances in technology – one could not assume that physical attendance was a necessary requirement of every job.

The En Banc Reversal

In the recent decision, the full Sixth Circuit reversed, and affirmed the district court’s grant of summary judgment.

In so doing, the Court noted that both the language of the ADA and the EEOC’s regulations supported the conclusion that attendance at work and presence at the work site was an “essential function” of most jobs and that “most jobs would be fundamentally altered if regular and predictable on site attendance is removed.” It also noted that the EEOC’s own guidance confirmed that an employer could refuse a telecommuting request if the job required “face-to-face interaction and coordination with other employees,” or “in person interaction with colleagues, clients or customaries.”

Notably, the Court also soundly rejected the EEOC’s argument that because Ford had allowed some employees to telecommute on a limited basis (1 or 2 set days per week), Ford was required to allow Plaintiff her request to telecommute whenever she wanted, up to 4 days per week.
Continue Reading A “Common Sense” Victory for Employers – The Ford Telecommuting Decision is Reversed

The Sixth Circuit has recently taught us the old lesson that employer policies must be in line with the law on a given point, or else employers risk granting employees rights that they wouldn’t otherwise want to grant, or be required to grant.

In Tilley v. Kalamazoo Cnty. Road Comm’n, No. 14-CV-1679, (6th Cir.