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Irritable Bowel Telecommuting Case Granted Rehearing En Banc

By Mark Wilson, Esq. on September 04, 2014 | Last updated on March 21, 2019

Back in April, we covered EEOC v. Ford, in which an employee with irritable bowel syndrome (IBS) alleged that Ford failed to make reasonable accommodations for her disability. A three-judge panel of the Sixth Circuit found that telecommuting was a reasonable accommodation, so Ford had to make that accommodation.

Last week, the Sixth Circuit granted a petition for rehearing en banc. The panel decision will be vacated and the case will be reheard in front of all 13 of the Sixth Circuit's active judges.

Let's Back Up

Jane Harris was a "resale steel buyer" for Ford -- essentially, a middleman between the companies providing steel and the companies using steel to produce car parts for Ford. Harris also had IBS, a condition that causes unpredictable "fecal incontinence." She was eventually unable to return work and requested an accommodation in the form of being able to telecommute as necessary when her symptoms were especially grievous. Ford said no, claiming "that her position was not suitable for telecommuting" and suggesting instead that her cubicle be moved closer to the bathroom or that she find a different job in the company more amenable to telecommuting.

It's Only Summary Judgment

The case came to the Sixth Circuit on summary judgment entered in favor of Ford. Of course, summary judgment isn't necessarily a ruling on the merits. The party advocating against summary judgment need only prove that there are facts in dispute.

An employer must provide reasonable accommodations if an employee is "otherwise qualified" to perform the "essential" parts of a job. Put another way, if a disability is basically the only thing preventing an employee from performing her job, and a reasonable accommodation will cure that problem, then the employer must provide the accommodation. The heart of this case was whether physical presence was an "essential" component of her job.

Though Ford argued that "physical attendance ... was critical to the group dynamic of the resale-buyer team," the court emphasized that advances in technology have altered the presumption that people who work in a team must be physically present at the workplace. Moreover, Harris presented evidence that physical presence wasn't as important as Ford claimed. Because there was a factual question about the importance of physical presence to Harris' job, summary judgment wasn't appropriate.

Human Sacrifice, Dogs and Cats Living Together, Mass Hysteria!

The decision sparked a lot of commentary from employer-side labor law firms and HR blogs. But remember: the case came to the Sixth Circuit on summary judgment. The court didn't say definitively that Ford failed to make reasonable accommodations; rather it said only that the determination should be left up to a jury.

Of course, to businesses and their law firms, it's a distinction without a difference: It still means they have to spend money on litigation if it comes down to it. A hearing en banc suggests that the Sixth Circuit is skeptical of the decision, so it may turn out that the Jeremiads coming from business in response to EEOC v. Ford will be for naught.

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