Increased Skepticism Around EEOC Claims?

lawsuitAccording to at least one attorney, a recent Sixth Circuit appeals court ruling in a disability discrimination case underscores the federal courts’ increasingly cynical view of EEOC claims.

An overview of what led to the April 10 decision in EEOC v. Ford Motor Co.:

Jane Harris, a now-former Ford employee with irritable bowel syndrome, sought a job schedule of her choosing, which would allow her to work from home as needed, up to four days a week. Ford denied her request, determining that “regular and predictable on-site attendance” was essential to Harris’s “highly interactive” job as a resale buyer with the company.

Early in her career with Ford, Harris—who joined the automaker in 2003—earned awards and accolades for what court documents describe as her “strong commodity of knowledge” and “diligent work effort.” Her performance soon deteriorated, however, and by her fifth full year with the company, Harris ranked in the bottom 10 percent of her peer group within Ford. By 2009, her last year with the organization, she “was not performing the basic functions of her position,” according to court records.

In addition, Harris missed an average of 1.5 work days per week in 2008, and frequently arrived at work late and left early, court records indicate.

Harris’ irritable bowel syndrome naturally exacerbated the situation, with her symptoms contributing to greater stress. In turn, the added stress worsened her symptoms and made it more likely for her to miss work.

Court records suggest that Ford “tried to help” Harris, adjusting her work schedule and allowing her to work from home on an ad hoc basis, for instance. But, despite these measures being taken, Harris was still “unable to establish regular and consistent work hours” and failed “to perform the core objectives of the job.”

After Ford attempted to offer alternative accommodations—some of which Harris rejected—she was terminated in September 2009, as a result of what the company called “several years of subpar performance and high absences.”

In August 2011, the EEOC sued Ford under the Americans with Disabilities Act. While the Sixth Circuit ruled against Ford in an April 2014 decision, an appellate panel voted to rehear that ruling. The court ultimately reversed that decision, noting that an employee with a disability is not qualified for a position if he or she cannot perform the necessary functions of the role with or without reasonable accommodation. The court noted that telecommuting may be a reasonable accommodation per the ADA, except in a scenario in which regular attendance is essential to performing the job’s critical functions.

The EEOC “has been pursuing telecommuting claims on a regular basis,” says Mark Girouard, a Minneapolis-based labor and employment attorney with Nilan Johnson Lewis.

This decision, however, figures to make establishing these claims more difficult for the organization, says Girouard.

“Obviously, each position must be analyzed individually, but the Sixth Circuit’s description of the job at issue in this case could be applied to many other positions.”

In other words, there are many jobs where availability to participate in face-to-face interactions should necessitate regular and predictable performance, he says, adding that “the en banc decision makes clear that courts should defer to employers’ business judgment on that issue.”

Last week’s decision “adds to the list of recent major losses for the EEOC,” says Girouard. “Separate and apart from the substance of the decision, the fact that the EEOC lost another major lawsuit highlights the increasing skepticism applied to the EEOC by the federal courts.”