In a comment to this blog entry, I discussed the panel decision of the Sixth Circuit in EEOC v. Ford Motor Company where the panel held that telecommuting was a reasonable accommodation. Before proceeding further, I want to thank Jon Hyman for alerting me through his blog that the en banc decision came down April 10, 2015. I also want to encourage everyone to read what John has to say in his blog entry this week (he also has a link to the en banc decision in his blog entry), as his Friday entry promised some fireworks; I would say he came through on that promise. Also, Eric Meyer in this blog entry of his , has thoughts worth reading as well. I fully expect Robin Shea to weigh in as well. All three of these people have blogs in my blog roll.

In my blog entry mentioned above, I thought the defendant would seek an en banc hearing because under the facts of the case there were some serious weaknesses in the majority opinion of the panel decision. The en banc decision was an 8 to 5 decision, and I thought I would highlight the arguments of the majority and minority opinion. My approach to this blog entry is: the introduction section above, the majority opinion, the dissenting opinion, and takeaways. In the analysis of both the majority opinion and the dissenting opinion, I offer my thoughts immediately underneath the particular reason for the majority opinion or the dissent. As is usual, the reader is free to focus on any or all of the sections of this blog entry.

Majority opinion

1. Basically, the majority says that attendance is presumed to be an essential function of the job unless you can satisfy Samper, which was the subject of this main blog entry , of which I added EEOC v. Ford Motor Company in the comments section.

2. An employer is not required to modify an essential function of the job.

This is true. However, an employer does need to evaluate whether the person can do the essential function of the job with or without reasonable accommodations. If accommodations would modify or eliminate the essential functions of the job, then the ADA does not require the employer to grant that accommodation. The employer does need to work with the employee to get the employee to the same starting line as a person without a disability so long as the essential functions of the job are not compromised by the accommodations.

3. Ford engaged in an interactive process and only quit when it came down to modifying essential functions of the job.

4. An essential function of the job reflects an employer’s judgment and also what the employer does. To the majority, Ford had plenty of evidence to suggest that on-site attendance was an essential function of the plaintiff’s job.

As I alluded to in my comment on the Samper case, it is certainly possible that Ford had plenty of evidence to suggest that on-site attendance was an essential function of the job. However, that doesn’t answer the question. Is essential functions of the job a question of fact or a question of law. There are certainly cases holding that essential functions of the job is a question of fact. On the other hand, it is not unusual for a court to find that the facts are so overwhelming that in essence, a question of fact never presents itself.

5. Where an employer’s judgment as to essential job functions as evidenced by the employer’s words, policies, and practices and taking into account all relevant factors is job-related, uniformly enforced and consistent with business necessity, summary judgment in favor of the employer is required.

Whether a job’s function is essential has to do with the fundamental aspects of carrying out that job. I am not following how essential functions of the job has anything to do with whether it is job-related or consistent with business necessity, concepts we discussed here. Also, the uniformly enforced piece is a bit problematic because the ADA is not dealing with disparate treatment here, but rather with the affirmative duty to accommodate a person with a disability. Finally, if this becomes the standard, then litigation over essential functions just got incredibly complicated because not only would you have to show that the function is fundamental to carrying out the purpose of the job, but you would also have to show that it is job-related (which I suppose we could presume if the function was essential), and consistent with business necessity (to my mind, it is certainly possible that a job could have an essential function that is not vital to the operation of the business). I get how uniformly enforced might go to essential functions, but also this is not a situation where you are dealing with disparate treatment.

6. With respect to the retaliation claim, temporal proximity cannot be the sole basis for finding pretext. Also, considering the performance issues, plaintiff could not show per Nassar that the filing of the EEOC claim was a but for reason for the termination.

The dissent is quite right to point out that this is harsh for persons with disabilities, especially if their performance problems is connected to the lack of accommodations. That said, this defense strategy seems to be sound in light of University of Texas Southwestern Medical Center v. Nassar, which we discussed here.


1. Essential functions of the job is a question of fact and not appropriate for summary judgment.

As a matter of case interpretation, the cases generally find essential functions of the job to be a question of fact where to the court’s mind it is a close call.

2. The majority turned the summary judgment standard on its head by focusing on facts least favorable to the plaintiff rather than on facts most favorable to the plaintiff. Further, it is not right to make the employee testimony somehow inherently less credible than testimony from the employer.

The dissent may be onto something here. Having read thousands of cases over the years, it often seems that summary judgment turns into a bench trial based on discovery and then if it is a close call goes to the jury and if not the judge decides to grant the motion for summary judgment, usually for the defense but in rare situations for the plaintiff. In other words, the court seems to be acting as a screen out with the summary judgment practice. That is, it seems to me that cases go to the jury only where the plaintiff has a very real chance of winning or is very likely to win, otherwise the case gets decided on summary judgment for the defense. I have seen a couple of cases, such as this one, that say this view of summary judgment has taken things too far and it isn’t the province of the judge to act as the screen out where the critical facts are contested, but such cases are certainly not the majority.

3. Ford’s judgment that physical presence at the office is an essential function of the job is entitled to consideration, but that does not mean it is entitled to deference. The ADA states only that consideration shall be given to the employer’s judgment as to the essential functions of the job but that is not the same thing as saying deference is to be given to the employer.

This is an excellent point. However, the case law as a matter of practice has given different levels of deference, depending upon the jurisdiction, to the employer’s notion of what an essential function of the job is. If I had to categorize it, I would say that the cases range from deference to deference plus to strong deference, but it is rare that a case just give consideration to the employer’s view of essential function rather than some degree of deference.

4. The cases requiring physical presence are distinguishable from this case.

5. Technology has advanced in 1995 in facilitating teamwork through fast and effective electronic communication, and so it should no longer be assumed, per the majority opinion, that teamwork must be done in person.

The majority opinion does create this presumption that teamwork must be done in person. Such a presumption takes things even further than Samper. Also, as Jon points out in his blog entry of today, mentioned above, a strong argument can be made that the presumption should be reversed.

6. The slippery slope argument overstates the reach of this case and sets a poor precedent for other failure to accommodate cases since providing telework is not just a good deed but is sometimes legally required under the ADA.

In another life, I actually taught a logic class to college students. One of the things that the law is particularly bad about is how it emphasizes the logical fallacy of the, “slippery slope.” That is, you decide something one way and that necessarily means the ball just keeps rolling downhill. It is a logical fallacy because everything turns on its facts and the ball does not have to keep rolling at all. Therefore, to my mind, this is an excellent point made by the dissent. There are most certainly going to be situations where telework is going to be legally required under the ADA, especially where the Samper criteria are not satisfied.

7. It was not clear from the record whether the plaintiff was asking for flex time or time to be able to work beyond office hours. If there was a request to telework during core business hours only, that might be considered a reasonable request.

8. The majority opinion reads facts and ambiguity contained in the record in a way least favorable to the plaintiff when on summary judgment it should be the other way around.

See my discussion of summary judgment above.

9. The request of the plaintiff to telework up to four days a week was an opening bid and Ford should have made a counteroffer.

Depending upon the Circuit, failure to engage in the interactive process may or may not be an independent cause of action for violating the ADA. In this situation, the court’s majority opinion is in essence saying that the plaintiff causes the breakdown of the process where an accommodation request would modify or change the essential functions of the job.

10. Since the interactive process is not an end in and of itself, the employee must present evidence that a reasonable accommodation could have been identified if the employer had engaged sufficiently in the interactive process, which the EEOC did.

The problem with this argument is that Ford did engage in a substantial interactive process up until the point where the essential functions of the job, at least to Ford Motor’s eyes, were to be compromised. Also, this particular statement goes further than case law that I have seen, much of which says that all the plaintiff has to do is identify a reasonable accommodation and then the ball goes into the employer’s court.

11. In the Sixth Circuit, reassignment is reasonable only where the employer demonstrates that it would be an undue hardship to accommodate the employee in his or her current position.

With respect to reassignment, case law is all over the place on this one. Be sure to check your own jurisdiction.

12. With respect to retaliation, a reasonable jury could certainly infer from the timing and nature of the events that Ford fired the plaintiff in retaliation for the charge she filed with the EEOC.

This is most certainly true in this case as the time in between firing and the charge was not a great deal of time. However, the problem still is that retaliation claims require but for causation per University of Texas Southwestern Medical Center v. Nassar.

13. Citing to this case, which we discussed previously, the dissent believed that the key question was whether the EEOC charge that was filed was the poison that precipitated the firing to occur when it did. If so, that was wrongful conduct.

This is a very interesting argument and one that I have not seen before. It will be interesting to see how much currency this argument gets in the courts.

14. The majority opinion is bad policy because that opinion makes it impossible for employees with performance problems to bring a retaliation claim based on the theory that those performance problems did not truly motivate the employer to fire them. That cannot be in accordance with the purposes of the ADA because employees with disabilities often have performance problems precisely because of the struggles they encounter to manage those disabilities.

Absolutely true. However, the Supreme Court has spoken on the causation standard in retaliation cases. This leads to the question, which we have discussed in this blog before, as to what does “but for” really mean. Also, does equity, i.e. principles of fairness, demand some slack where it can be shown that the performance problems were related to the failure to accommodate the employee? Keep in mind, it is far from clear in this case whether the performance problems were related to the failure to accommodate or it was just a case of bad performance on the part of the employee.


1. If you are faced with attendance as an essential function of the job, make sure you read the Samper case.

2. Essential functions of the job do not need to be modified or eliminated in order to comply with the ADA. That said, make sure you can back up what the essential functions of the job are. In many cases, the benefit of the doubt goes to the employer.

3. Requiring that a threshold of job-related, uniform enforcement, and consistent with business necessity be in place before summary judgment in favor the employer is required, does litigants on either side no favors as it most definitely increases the expense of litigation. It also imposes a set of requirements that in the long run may prove very problematic for employers, particularly with respect to the business necessity requirement. Finally, I am struggling to see how the ADA and its implementing regulations even suggest the necessity for this standard.

4. Saying that temporal proximity cannot be the sole basis for finding pretext makes retaliation claims very difficult for plaintiffs considering that the standard is but for causation and performance problems are typically involved. One wonders if a standard could not be crafted so that temporal proximity is not a sole basis for finding pretext, but merits strong consideration where the performance problems are traceable to the failure to receive reasonable accommodations (that is, an accommodation that gets the person without a disability to the same starting line as a person with a disability and does not jeopardize the essential functions of the job).

5. On the plaintiff’s side, look for every plaintiff attorney dealing with a reasonable accommodation case to take the section of the dissenting judges opinion that when it comes to essential functions of the job, an employer is entitled to consideration but not, as is the practice of cases, deference.

6. Given today’s technology, it simply doesn’t make sense that there should be a presumption that teamwork needs to be done in person. On the other hand, I don’t know if it makes sense to have a presumption saying that teamwork does not need to be done in person either. To my mind, a presumption is not needed, and the parties should be put to their proof.

7. The slippery slope argument is one that should be easily countered in the ADA. The fundamental purpose of the ADA is an individualized case analysis of each set of facts. Therefore, the slippery slope should not be an issue, and if there ever was a logical fallacy in the law, it would be the slippery slope in the context of ADA cases.

8. Defense attorneys filing a motion for summary judgment is standard practice. As a practical matter, it seems that once a defense file such a motion, the burden shifts to the plaintiff to prove the defense wrong. Look for plaintiff attorneys to use the section of the dissent saying that summary judgment practice has gone too far.

9. I don’t follow the point in the dissent saying that an employee must present evidence that a reasonable accommodation could have been identified if the employer had engaged officially in the interactive process. The way the cases have gone to date, is that the plaintiff must suggest a reasonable accommodation and once the plaintiff does, the employer must engage in the interactive process. After that, whoever breaks down the interactive process bears the liability. To say otherwise winds up in a situation where the defendant could be the breakdown in the interactive process but the plaintiff would still have the obligation to show that an accommodation was possible once the defense broke down the interactive process. That puts an added burden on the plaintiff, which to date has not been imposed.

10. When it comes to reassignment, check your jurisdiction for the applicable law.

11. Look for a lot of litigation in retaliation cases over what “but for,” really means.

12. Will this case go to the Supreme Court? First, I am not sure you could say there is a Circuit court split yet. Second, on the plaintiff’s side, you would have to be worried about whether the United States Supreme Court would unduly narrow the ADA, especially since the current nature of Congress is such that the law would not likely be amended regardless of the Supreme Court decision. Third, I am not sure where plaintiffs would find the fifth vote. Finally, plaintiffs with disabilities have not fared well at the Supreme Court when it comes to employment matters. Of course, you never know with these things as the Supreme Court decision in UPS v. Young illustrates.