The Dismantled Weapon of 'A Good Deed Never Goes Unpunished'

In addition, Harris had repeated and rampant attendance issues: By her last year of employment, she was absent from work more than she was present. While some of her absenteeism was attributable to irritable bowel syndrome, the court noted that it did not excuse her absenteeism altogether, even though “her symptoms increased her stress, and the increased stress worsened her symptoms ' making her less likely to come to work.”

Two separate supervisors, on three separate occasions, allowed Harris to telecommute ' as needed ' as an accommodation for her disability. However, these instances of accommodation did not improve her work performance or her attendance, and Harris failed to establish “regular and consistent work hours” or perform the core objectives of her job. Indeed, as the court noted, after each occasion of failed telecommuting, Ford utilized its “Workplace Guidelines” reporting tool, a tool specifically designed to assist employees with attendance issues related to illness. Therefore, each occasion led to a separate instance of telecommuting via the Workplace Guidelines tool. As a result, the court concluded that Ford had effectively allowed Harris to try telecommuting six times, each time with no positive impact on her work performance. Instead, her co-workers and supervisors had to pick up her slack to ensure that her job functions were completed.

Despite her previous attempts to telecommute, all of which failed, Harris asked for the ability to telecommute from home for up to four days a week as an accommodation for her disability. Ford discussed with Harris that of her 10 main job duties, four could not be performed at home (a point even Harris conceded), four could not be effectively performed at home, and the remaining two were not significant enough to support telecommuting. While Ford acknowledged that other resale buyers were allowed to telecommute, the conditions of their arrangements were significantly different: All were strong performers with excellent time-management skills, who could telecommute at most one day a week, and even on that one day, agreed that they would come in to work if needed. After this discussion, Ford declined Harris's request, although it offered other potential accommodations such as moving her office closer to the bathroom, or finding her other jobs at Ford that were better suited for telecommuting. Harris declined, suggested no other accommodations, and ultimately was terminated for poor performance.

The Ruling

In upholding summary judgment for Ford, the Sixth Circuit noted that “common sense” should guide the outcome of the case. The court noted that, despite “a 1400-or-so page record” from which lawyers could argue otherwise, the best reasoning was that which would be obvious to non-lawyers: that “[r]egular, in-person attendance is an essential function ' and a prerequisite to essential functions ' of most jobs, especially the interactive ones.” Because Ford had determined that such attendance was an essential function ' supported in part by the fact that resale buyers were officed in the same building as their primary internal client, and that the telecommuting policy was limited and required employees be able to come to work even on days they were working remotely ' that determination was entitled to deference. Since Harris was asking for an accommodation that exempted her from an essential job function, she was not a qualified individual as a matter of law, and therefore her termination was beyond the protections offered by the ADA.

The Defense

The EEOC argued inter alia that because Ford allowed other resale buyers to telecommute, its determination that regular, in-person attendance was an essential function was suspect, and did not support a grant of summary judgment. The court soundly rejected this argument, noting that such a holding would, contrary to the ADA's mandate ( see 42 U.S.C. ' 12111(9)(B) (listing modified work schedules as an example of a potential reasonable accommodation)), “encourage[] ' indeed, require[] ' employers to shut down predictable and limited telecommuting as an accommodation for any employee.” The court opined that such a holding would effectively turn the “good deed” of allowing telecommuting when appropriate and effective into a weapon, and “telecommuting should not become a weapon.”

Takeaways

Practically speaking, the Ford decision is a common-sense ruling that can assist employers in designing reasonable telecommuting options for its workers that will not be effectively used as weapons in future litigation. Offering telecommuting is an excellent way to help employees ' particularly those with familial obligations, such as child and elder dependent care ' to manage work-life balance. It can be essential to retaining talent, particularly with intergenerational workforces and national operations. It can also be a means to greater efficiency for employees when their physical presence is not always needed to get certain tasks done.

However, as with all things, the devil may be in the details. The Ford decision details some key aspects to a telecommuting policy that may assist other employers in maintaining such benefits for deserving, high-performing employees, while allowing them to reign in abuses.

First, to the extent a position requires in-person and interactive skills, the job description should detail just that. The job description for resale buyers at Ford was expliciti in that it required a high level of interactivity and teamwork, and that “regular and predictable attendance in the workplace” was essential. As the starting point for examining what an employer deems the essential functions of a position, a sound, written job description that is explicit about attendance and interactive skills will play a pivotal role in any ADA claim regarding telecommuting.

Second, to the extent Ford allowed resale buyers to telecommute, it did so with conditions. Resale buyers had to have a strong performance record to be allowed to telecommute. They could only telecommute one day a week, at the most. And they had to agree to come in to work on that one day if their in-person attendance was needed. Essentially, while Ford allowed employees to telecommute, it did so with a high degree of accountability and with conditions attached ' conditions that were based on the effective performance of the job. Maintaining and enforcing clear guidelines about who is eligible and who is not will greatly assist an employer when it is sued for refusing to allow an individual to telecommute.

Third, when an employee with a disability asked for the accommodation of telecommuting, Ford allowed her to try, even though it was beyond the parameters of its normal telecommuting parameters. Indeed, it allowed her to try multiple times. This flexible approach is the very essence of the interactive process. While Ford maintained reasonable and defined policies regarding telecommuting, it allowed a person with a disability the opportunity to try something a few steps beyond the policy to see if she could perform the essential functions of her position. When it became clear, after multiple attempts, that she could not, Ford did not have to allow it again. And, as the Sixth Circuit noted, this good deed could not become a weapon against Ford in future litigation.

Conclusion

Ford's success in this litigation came down to more than just asserting its business judgment that telecommuting was not a reasonable accommodation. Ford had a solid and supported job description requiring regular attendance; it had a well-articulated and consistently applied telecommuting policy that did not negate regular attendance as an essential function; and it allowed a person with a disability to try telecommuting to determine if she could perform her job. When she could not, it offered other accommodations. In the end, not only did Ford win summary judgment, it won the right to keep offering telecommuting to its strong-performing employees without fear that such a policy could be used as a weapon in future litigation. Employers that wish to offer the same types of flexible workplace policies without having that “good deed” become a weapon should take note of this decision, review their job descriptions, and review the parameters of their telecommuting policies.

Jen L. Cornell is an attorney with Nilan Johnson Lewis LLP. She can be reached at [email protected] or 612-305-7717.

The employment lawyer's adage that “no good deed goes unpunished” was thrown into sharp relief by the Sixth Circuit recently when it held that telecommuting ' even when offered to other employees ' is not necessarily a reasonable accommodation for a disabled employee. Reversing a divided panel, the Sixth Circuit Court of Appeals upheld the Eastern District of Michigan Court's grant of summary judgment to Ford Motor Company (Ford) in a claim of disability discrimination under the Americans with Disabilities Act (ADA). E.E.O.C. v. Ford Motor Co., Case No. 12-2484, 2015 WL 1600305 (6th Cir. Apr. 10, 2015).

Background

Jane Harris was a resale buyer who had worked for Ford for over six years. Harris suffered from irritable bowel syndrome, which gave her uncontrollable diarrhea and fecal incontinence. Her job at Ford was “highly interactive” and required her to meet with suppliers at their businesses, and with Ford employees and stampers at the Ford plant. Indeed, because resale buyers needed to meet with stampers often and with short notice, Ford had officed the resale buyerts in the same building as its stampers for years. While Harris had been a strong performer when she first started at Ford, in her fourth year of employment, she was rated in the bottom 25% of her peers. In her fifth and sixth years of employment, these same performance issues were still evident, and she was rated in the bottom 10% of her peer group two years in a row. These low ratings were due to her lack of interpersonal skills, her late delivery of work, her lack of concern for quality, and her failure to communicate with suppliers.

In addition, Harris had repeated and rampant attendance issues: By her last year of employment, she was absent from work more than she was present. While some of her absenteeism was attributable to irritable bowel syndrome, the court noted that it did not excuse her absenteeism altogether, even though “her symptoms increased her stress, and the increased stress worsened her symptoms ' making her less likely to come to work.”

Two separate supervisors, on three separate occasions, allowed Harris to telecommute ' as needed ' as an accommodation for her disability. However, these instances of accommodation did not improve her work performance or her attendance, and Harris failed to establish “regular and consistent work hours” or perform the core objectives of her job. Indeed, as the court noted, after each occasion of failed telecommuting, Ford utilized its “Workplace Guidelines” reporting tool, a tool specifically designed to assist employees with attendance issues related to illness. Therefore, each occasion led to a separate instance of telecommuting via the Workplace Guidelines tool. As a result, the court concluded that Ford had effectively allowed Harris to try telecommuting six times, each time with no positive impact on her work performance. Instead, her co-workers and supervisors had to pick up her slack to ensure that her job functions were completed.

Despite her previous attempts to telecommute, all of which failed, Harris asked for the ability to telecommute from home for up to four days a week as an accommodation for her disability. Ford discussed with Harris that of her 10 main job duties, four could not be performed at home (a point even Harris conceded), four could not be effectively performed at home, and the remaining two were not significant enough to support telecommuting. While Ford acknowledged that other resale buyers were allowed to telecommute, the conditions of their arrangements were significantly different: All were strong performers with excellent time-management skills, who could telecommute at most one day a week, and even on that one day, agreed that they would come in to work if needed. After this discussion, Ford declined Harris's request, although it offered other potential accommodations such as moving her office closer to the bathroom, or finding her other jobs at Ford that were better suited for telecommuting. Harris declined, suggested no other accommodations, and ultimately was terminated for poor performance.

The Ruling

In upholding summary judgment for Ford, the Sixth Circuit noted that “common sense” should guide the outcome of the case. The court noted that, despite “a 1400-or-so page record” from which lawyers could argue otherwise, the best reasoning was that which would be obvious to non-lawyers: that “[r]egular, in-person attendance is an essential function ' and a prerequisite to essential functions ' of most jobs, especially the interactive ones.” Because Ford had determined that such attendance was an essential function ' supported in part by the fact that resale buyers were officed in the same building as their primary internal client, and that the telecommuting policy was limited and required employees be able to come to work even on days they were working remotely ' that determination was entitled to deference. Since Harris was asking for an accommodation that exempted her from an essential job function, she was not a qualified individual as a matter of law, and therefore her termination was beyond the protections offered by the ADA.

The Defense

The EEOC argued inter alia that because Ford allowed other resale buyers to telecommute, its determination that regular, in-person attendance was an essential function was suspect, and did not support a grant of summary judgment. The court soundly rejected this argument, noting that such a holding would, contrary to the ADA's mandate ( see 42 U.S.C. ' 12111(9)(B) (listing modified work schedules as an example of a potential reasonable accommodation)), “encourage[] ' indeed, require[] ' employers to shut down predictable and limited telecommuting as an accommodation for any employee.” The court opined that such a holding would effectively turn the “good deed” of allowing telecommuting when appropriate and effective into a weapon, and “telecommuting should not become a weapon.”

Takeaways

Practically speaking, the Ford decision is a common-sense ruling that can assist employers in designing reasonable telecommuting options for its workers that will not be effectively used as weapons in future litigation. Offering telecommuting is an excellent way to help employees ' particularly those with familial obligations, such as child and elder dependent care ' to manage work-life balance. It can be essential to retaining talent, particularly with intergenerational workforces and national operations. It can also be a means to greater efficiency for employees when their physical presence is not always needed to get certain tasks done.

However, as with all things, the devil may be in the details. The Ford decision details some key aspects to a telecommuting policy that may assist other employers in maintaining such benefits for deserving, high-performing employees, while allowing them to reign in abuses.

First, to the extent a position requires in-person and interactive skills, the job description should detail just that. The job description for resale buyers at Ford was expliciti in that it required a high level of interactivity and teamwork, and that “regular and predictable attendance in the workplace” was essential. As the starting point for examining what an employer deems the essential functions of a position, a sound, written job description that is explicit about attendance and interactive skills will play a pivotal role in any ADA claim regarding telecommuting.

Second, to the extent Ford allowed resale buyers to telecommute, it did so with conditions. Resale buyers had to have a strong performance record to be allowed to telecommute. They could only telecommute one day a week, at the most. And they had to agree to come in to work on that one day if their in-person attendance was needed. Essentially, while Ford allowed employees to telecommute, it did so with a high degree of accountability and with conditions attached ' conditions that were based on the effective performance of the job. Maintaining and enforcing clear guidelines about who is eligible and who is not will greatly assist an employer when it is sued for refusing to allow an individual to telecommute.

Third, when an employee with a disability asked for the accommodation of telecommuting, Ford allowed her to try, even though it was beyond the parameters of its normal telecommuting parameters. Indeed, it allowed her to try multiple times. This flexible approach is the very essence of the interactive process. While Ford maintained reasonable and defined policies regarding telecommuting, it allowed a person with a disability the opportunity to try something a few steps beyond the policy to see if she could perform the essential functions of her position. When it became clear, after multiple attempts, that she could not, Ford did not have to allow it again. And, as the Sixth Circuit noted, this good deed could not become a weapon against Ford in future litigation.

Conclusion

Ford's success in this litigation came down to more than just asserting its business judgment that telecommuting was not a reasonable accommodation. Ford had a solid and supported job description requiring regular attendance; it had a well-articulated and consistently applied telecommuting policy that did not negate regular attendance as an essential function; and it allowed a person with a disability to try telecommuting to determine if she could perform her job. When she could not, it offered other accommodations. In the end, not only did Ford win summary judgment, it won the right to keep offering telecommuting to its strong-performing employees without fear that such a policy could be used as a weapon in future litigation. Employers that wish to offer the same types of flexible workplace policies without having that “good deed” become a weapon should take note of this decision, review their job descriptions, and review the parameters of their telecommuting policies.

Jen L. Cornell is an attorney with Nilan Johnson Lewis LLP. She can be reached at [email protected] or 612-305-7717.