EEOC v. Ford Motor Company
Telecommuting as Disability Accommodation?
When Yahoo! CEO Marisa Mayer implemented a ban on telecommuting at the company in 2013, the initial backlash seemed to focus primarily on her taking a step that would most harm those for whom she had served as a role model – working mothers in Silicon Valley. After stepping into the CEO role while pregnant, many people noted a hypocrisy in Mayer’s decision to eliminate an arrangement that benefitted working mothers while she enjoyed the benefits of the nursery that Yahoo! installed next to her office for her then-newborn son (and, one can assume, the squad of child care providers to whom she could turn). Mayer’s announcement ignited a firestorm of discussion regarding the challenges women face in the workplace and the need for flexible work arrangements. The discussion then turned to an issue particularly relevant in Silicon Valley, the place that greatly facilitated telecommuting through its development of technology and through the widespread utilization of telecommuting arrangements by technology companies: Do the benefits of human interaction in the workplace outweigh those provided by telecommuting? A simple internet search quickly reveals the numerous, varied, and conflicting opinions. (See e.g., New York Times’ Get Off Your Cloud; the New Yorker’s Face Time; Millennial CEO’s Dear Marissa Mayer, You’re Ruining It For The Rest Of Us; the Forbes’ Bodies Matter: The Inconvenient Truth In Marissa Mayer Banning Telecommuting At Yahoo.)
Whatever one’s view on this issue, Marisa Mayer and others have apparently concluded that while technology has made it increasingly easier to work from home or nearly any other remote location, an employee’s presence in the workplace working alongside his/her colleagues enhances collaboration, creativity, and productivity. For at least some employers, presence in the workplace has become an essential function even for those positions in which telecommuting employees had successfully performed for years. In considering telecommuting as a form of disability accommodation, however, it remains to be seen whether the courts will agree.
EEOC v. Ford Motor Company
In Equal Employment Opportunity Commission v. Ford Motor Co., 2014 WL 1584674 (6th Cir. April 22, 2014), the United States Court of Appeals for Sixth Circuit reversed the District Court’s grant of summary judgment in favor of Ford on a claim for failure to accommodate. One issue before the Court concerned the reasonableness of a telecommuting arrangement as an accommodation for an employee with irritable bowel syndrome. Ford presented evidence that a buyer – the position held by the employee on whose behalf the E.E.O.C. pursued the claims – could not effectively perform the duties of the position if telecommuting on more than a limited basis, and it presented additional evidence that its managers had made “the business judgment that such meetings were most effectively handled face-to-face, and that email or teleconferencing was an insufficient substitute for in-person team problem-solving.” The E.E.O.C. countered with evidence that Ford had “a telecommuting policy that authorized employees to work up to four days per week from a telecommuting site” and that Ford policy “provide[d] that all salaried employees are eligible to apply for a telecommuting arrangement, but specifically state[d] that such arrangements are not appropriate for ‘all jobs, employees, work environments or even managers.’” Finally, the E.E.O.C. presented evidence that “several other buyers telecommuted on one scheduled day per week.”
In granting summary judgment on the failure-to-accommodate claim, the District Court, “relying on precedent ‘declin[ing] to second-guess an employer’s business judgment regarding the essential functions of a job,” concluded that the request to telecommute up to four days per week did not qualify as a reasonable accommodation. The Sixth Circuit, however, seemed far less reluctant to second-guess Ford’s business judgment in this regard. After noting that Ford’s business judgment deserved consideration and noting also the “substantial evidence of its business judgment and the experience of other resale buyers” that Ford provided, the Court discussed the evidence the E.E.O.C. had submitted suggesting that the buyer could satisfactorily perform her job while working remotely. Explaining that “the class of cases in which an employee can fulfill all requirements of the job while working remotely has greatly expanded,” the Court concluded that the EEOC had created a factual dispute about whether the buyer could have effectively worked from home.
After concluding that there existed a triable question as to whether presence in the workplace truly qualified as an essential function, the Court cautioned against an overly expansive reading of its decision: “It is important, at this juncture, to clarify that we are not rejecting the long line of precedent recognizing predictable attendance as an essential function of most jobs. Nor are we claiming that, because technology has advanced, most modern jobs are amenable to remote work arrangements. As we discussed above, many jobs continue to require physical presence because the employee must interact directly with people or objects at the worksite.”
What Does It All Mean?
Given this warning, the procedural posture of the case, and the likelihood that the evidence of Ford allowing buyers to telecommute (albeit on a limited basis) weakened its argument, the Ford Motor Co. case certainly does not mean that employers must now allow all employees to telecommute as a form of disability accommodation where necessary. But it does suggest that an employer’s conclusion about the positive effects of having employees in the workplace – intangible effects that may prove difficult to measure – will not carry the day. So while Marisa Mayer and other CEOs can require that employees now work at the office based solely on their business judgment that their companies will fare better with everyone working onsite, the Ford Motor Co. case makes clear that it may take far more to convince a court that presence in the workplace qualifies as an essential function for many positions.