Sixth Circuit Finds Regular and Predictable Attendance Is An Essential Job Function

April 13, 2015Articles

On April 10, 2015, the Sixth Circuit issued an en banc opinion finding that Jane Harris, a resale buyer, was not qualified to perform the essential functions of her position because she was unable to provide regular and predictable onsite attendance. This decision reverses the initial Sixth Circuit panel decision finding that a genuine issue of material fact existed regarding whether Harris was qualified to perform the essential functions of her position. Significantly, the en banc decision was a narrow majority (8:6) and does not suggest that telecommuting can never be a reasonable accommodation under the Americans With Disabilities Act where the job requires onsite presence, but rather that Harris’ need for unpredictable and extensive telecommuting prevented her from performing the essential functions of her position.

Harris worked for Ford Motor Company (“Ford”) as a resale buyer responsible for purchasing raw steel from steel suppliers and then selling the steel to parts manufacturers. The role is highly interactive, and while some of the interactions occur by email and telephone, many interactions “require good old-fashioned interpersonal skills” and are face-to-face interactions. While Harris had some initial success in her position, over time she began receiving poor reviews, rating in the bottom 22% of her peer group in 2007 and the bottom 10% in 2008. Her poor performance was linked to her attendance --- Harris missed an average of 1.5 work days per week in 2008. Notably, Harris suffered from severe irritable bowel syndrome which made it difficult for her to make the drive to work or control her bowels while in the office. As a result, Harris often missed work, and Ford began working with her to explore telecommuting options. Ford gave Harris three different set telecommuting schedules, but none of them was successful and Harris continued to miss work. Harris ultimately requested that she be permitted to work from home up to four days per week, noting that several of her coworkers telecommuted. Instead, Ford offered to move her to a location closer to the restroom or to find her another position better suited for telecommuting. Harris refused both accommodations and filed a charge alleging disability discrimination with the Equal Employment Opportunity Commission (“EEOC”). Harris’ poor performance continued, and she was again rated in the bottom 10% of her peers in July 2009. Harris was placed on a performance improvement plan, failed to meet its requirements, and was terminated on September 10, 2009.

The Sixth Circuit held that Harris’ telecommuting request was meaningfully different than other resale buyers’ telecommuting arrangements. Specifically, Ford’s telecommuting policy for resale buyers limited telecommuting to at most one set day per week, as many of the job responsibilities (e.g. meeting with suppliers, making price quotes to parts manufacturers, and attending internal meetings) could not be performed from home. Harris acknowledged that four out of ten of her primary duties could not be performed from home, and thus the Sixth Circuit found that regular work attendance was essential to Harris’ job and working from home up to four days per week was not a reasonable accommodation.

Harris also alleged that she was retaliated against for filing a claim for disability discrimination with the EEOC. The Sixth Circuit held that the EEOC could not prevail on this claim as a matter of law because the record was clear that Harris was terminated because o f her poor performance. Indeed, her performance issues were well-documented and existed prior to her filing the charge, including her ranking in the bottom 10% of her peer group before the charge was filed.

The Sixth Circuit decision is a victory for employers, emphasizing that “common sense” dictated that regular on-site attendance is required for interactive jobs. However, it is important to recognize how much Ford Motor Company did right in this case --- it clearly set forth job expectation for Harris, it worked with her on potential accommodations, and it only took adverse action against her after the interactive process and several accommodations failed to improve her performance. Employers are advised to examine their own job descriptions to make sure they clearly spell out the essential functions of jobs and to make sure managers are trained on how to handle accommodation requests.

If you have questions regarding the EEOC v. Ford Motor Company case or implementation of any of the above best practices, please contact your Dinsmore attorney.