A few months ago, I posted my fourth and what I then called my “final” blog on the Sixth Circuit’s significant ADA decision in EEOC v. Ford Motor Company. I had never posted four blogs about a decision. But that “final” blog has turned out not to be “final” because on August 29, 2014, a majority of the judges on the Sixth Circuit voted to rehear the case en banc. The Court’s Order vacates the previous opinion by a panel of the Sixth Circuit and restores the case to the appeals docket. Not only is this the fifth blog about the case, but there is at least one more to come when the Sixth Circuit issues its en banc decision.
Why is this case so important? Some of the reasons include:
- Because it deals with the nature and scope of the telecommuting accommodation, i.e., working at home. The individual on whose behalf this case was brought sought to work at home up to four days per week. See blog post here.
- Because the Sixth Circuit, in a 1997 decision, said that it would be an “unusual” case for an employee seeking to telecommute as a reasonable accommodation to survive summary judgment, but in the panel decision earlier this year, said that “given the state of modern technology, it is no longer the case that jobs suitable for telecommuting are “extraordinary” or “unusual.” Whether such an accommodation is “extraordinary” or not is important to employers.
- Because it deals with the employer’s role in deciding whether physical presence at work is an essential job function. The panel decision noted that due to the advance of technology, the workplace can no longer be assumed to mean the employer’s physical location, and “that the ‘workplace’ is anywhere that an employee can perform her job duties.”
- hereBecause the Supreme Court of the United States in US Airways v. Barnett adopted a two-step analysis to determine whether an accommodation is reasonable and the panel decision does not discuss this analytical framework. The two steps are: that an employee must prove that a requested accommodation is reasonable “in the run of cases” by showing that the accommodation is “reasonable on its face” or, if it is not, that “special circumstances” make the accommodation reasonable in the specific situation (the first step). If the plaintiff meets this burden, the employer may argue that the proposed accommodation poses an undue hardship on its operation (the second step). The panel decision did not address whether working from home up to four days weekly is “reasonable in the run of cases” or that special circumstances make it so in this case. See blog post here.
- Because there is a question about the applicability of the “no good deed goes unpunished” axiom to accommodation requests. Does the fact that an employer allows some employees to telecommute under other circumstances (e.g., defined days) mean the employer must allow others to telecommute in other, less defined circumstances (e.g., up to four days weekly). See blog post here.
And so ends this fifth Ford post. Looking forward to the en banc decision and the sixth post.