Court Report

Jun 27, 2014

May CoverTelecommuting an ADA Reasonable Accommodation

EEOC v. Ford Motor Co., 6th Cir., No. 12-2484.

An employer may have to allow an employee to telecommute as a reasonable accommodation to a disability—even if teamwork is an important part of the employee’s job, the 6th U.S. Circuit Court of Appeals ruled.

Jane Harris was hired in 2003 as a resale steel buyer at Ford Motor Co. A resale steel buyer’s main role is to respond to emergency supply situations to ensure that there is no gap in steel supply. The majority of the job requires group problem-solving and interacting with co-workers and suppliers.

Harris suffered from irritable bowel syndrome. As her symptoms worsened, Harris had to miss work, and her absences began to negatively affect her job performance. In 2005, Ford allowed Harris to work a flextime telecommuting schedule on a trial basis. However, the trial was unsuccessful in that Harris missed deadlines because she worked outside of normal work hours and lacked access to information, people and suppliers.

Eventually, Harris formally requested that she be permitted to telecommute on an as-needed basis as an accommodation for her disability. Ford has a policy that allows employees to apply for a telecommuting arrangement but that states such arrangements are not appropriate for all jobs or employees.

Ford determined that Harris’ position was not suitable for telecommuting because group meetings and group problem-solving were best done face to face. Ford did suggest several other accommodations, such as moving Harris’ cubicle closer to the restrooms or seeking another job within Ford more suitable for telecommuting. Harris rejected both of these options.

After receiving a poor performance review, Harris was put on a performance enhancement plan. Harris’ performance did not improve, and Ford terminated her employment. The Equal Employment Opportunity Commission (EEOC) filed a lawsuit alleging that Ford violated the Americans with Disabilities Act (ADA) by failing to accommodate Harris’ disability. The district court determined that Harris was not qualified for the position because of her excessive absenteeism and that Harris’ request was not a reasonable accommodation. The district court granted summary judgment in favor of Ford.

Professional Pointer
When an employer is determining if telecommuting is a reasonable accomodation, the employer should determine if physical presence is a essential job requirement.

The 6th Circuit reversed the district court’s decision. Harris was disabled under the ADA, the court said, so the dispute centered on whether Harris was qualified for her position, with or without a reasonable accommodation. Determining if physical presence is essential to a job is a highly fact-specific investigation, the court said. While Ford believed that face-to-face interaction was preferable, Harris stated that even when she was physically present at Ford, most of her work was done via conference call. The 6th Circuit determined that both sides offered enough evidence for there to be a dispute of the facts, making summary judgment inappropriate.

The EEOC also demonstrated that with a reasonable accommodation, Harris was qualified for the resale steel buyer position. Harris wanted to work from home, when needed, but during regular business hours. This did not raise the same business concerns as a flextime schedule.

The 6th Circuit deemed Ford’s other accommodation suggestions unreasonable. Ford’s suggestion of moving Harris’ cubicle closer to the bathroom was unreasonable because Harris still might not have time to make it to the restroom. Ford’s offer to reassign Harris was unreasonable because there was no guarantee that a suitable position would be available.

The 6th Circuit determined that there was a genuine dispute of the facts regarding whether Harris could perform all of her job duties from a remote location. Therefore, the 6th Circuit reversed the district court’s grant of summary judgment.

The dissent disagreed with the majority, stating that the majority failed to take into account the fact that not all of Harris’ job duties could be performed remotely. For example, Harris was required to conduct in-person supplier visits. Other 6th Circuit cases state that if an employee can’t meet attendance requirements, he or she is not qualified.

By Caitlin M. Gadel, an attorney with Seaton, Peters & Revnew P.A., the Worklaw® Network member firm in Minneapolis.

Company Rule Forbidding Discussion of Wages Illegal

Flex Frac Logistics v. NLRB, 5th Cir., No. 12-60752.

A confidentiality agreement that could reasonably be construed to prohibit employees from discussing wages with those outside the company violated the National Labor Relations Act (NLRA), the 5th U.S. Circuit Court of Appeals ruled.

Flex Frac Logistics is a nonunion trucking company based out of Texas that hauls sand to oil and gas well sites. The company requires each employee to sign a confidentiality clause that reads in relevant part “Employees deal with and have access to information that must stay within the Organization. Confidential Information includes, but is not limited to ... our financial information, including costs ... [and] personnel information and documents. ... No employee is permitted to share this Confidential Information outside the organization. ... Disclosure of Confidential Information could lead to termination, as well as other possible legal action.”

Professional Pointer
All companies, including nonunion employers, should take a careful look at their employment policies and procedures to make sure that their language does not run afoul of the NLRA.

When Flex Frac fired employee Kathy Lopez in 2010, she filed a claim with the National Labor Relations Board (NLRB) challenging her termination. In reviewing Lopez’s allegations, the NLRB came across the above confidentiality provision and, even though Flex Frac was not a union employer, the provision was deemed unlawful by the NLRB because it prohibited employee discussion of wages.

The case was ultimately appealed to the 5th Circuit. The court acknowledged that the above policy did not explicitly prohibit employee discussion of wages. But the court found that an employee could reasonably construe the prohibition on sharing company “financial information” and “personnel information” as applying to employee wages and compensation. Since discussion of wages among employees is protected under the NLRA, the prohibition violated that law, according to the 5th Circuit.

By Declan Leonard, managing partner of Berenzweig Leonard in Northern Virginia, where he leads the firm’s management-side employment law practice.

Leering Doesn’t Establish Hostile Work Environment

Lewis v. City of Norwalk, 2nd Cir., No. 13-2485.

Upholding summary dismissal of a same-sex harassment claim, the 2nd U.S. Circuit Court of Appeals ruled that a supervisor’s periodic leering and licking of his lips were not sufficiently severe or pervasive to create a hostile work environment under Title VII of the 1964 Civil Rights Act.

Former city of Norwalk, Conn., employee Oswald Lewis alleged that, beginning in 2006, his openly gay supervisor, Thomas Hamilton, “ ‘leered’ at Lewis, looking from his crotch to his head while smiling, and … made gestures with his tongue.” According to Lewis, this conduct occurred multiple times per week in 2006 but “became more sporadic over time.”

In May 2010, Lewis met with Hamilton and the city’s director of personnel and labor relations, James Haselkamp, to review his performance evaluation. Like his prior evaluations, Lewis’ 2009-10 evaluation reflected problems with the quality of his work product. During the meeting, Hamilton and Haselkamp offered Lewis the opportunity to resign in exchange for a severance package but stated that if Lewis did not resign, they would remove him.

Lewis refused to resign and instead complained of Hamilton’s conduct pursuant to the city’s sexual harassment policy. An investigation found no corroboration for Lewis’ claims, and he was terminated for substandard work performance.

Professional Pointer
An employer is not required to abandon a previously contemplated course of disciplinary action if an employee makes a last-ditch harassment complaint, as long as that complaint is fully and fairly investigated and the disciplinary action is supported by grounds unrelated to the alleged harassment.

Lewis brought suit in federal district court against Hamilton, Haselkamp and the city for harassment. The district court subsequently granted the defendants’ motion for summary judgment.

On appeal, the 2nd Circuit held that the only overtly sexual conduct alleged by Lewis—Hamilton’s licking of his lips and “leering”—was insufficiently severe and too sporadic to establish a hostile work environment.

By Amanda C. Van Wieren, an associate attorney at the Portland, Ore., office of Ogletree Deakins, an international labor and employment law firm representing management.


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