Amid a crush of recent litigation failures, the U.S. Equal Employment Opportunity Commission scored a victory on Tuesday against appellate hotshot Eugene Scalia of Gibson, Dunn & Crutcher, reviving a case that a dissenting judge warned could backfire dramatically on employees.
In a 2-1 opinion, the U.S. Court of Appeals for the Sixth Circuit reinstated the EEOC’s claims that Ford Motor Company discriminated against a disabled employee by refusing to let her work regularly from home, and then fired her after she accused Ford of violating the Americans with Disabilities Act. The majority rejected Ford’s arguments that the job in question required a physical presence in the workplace, and it blamed the employee’s performance problems when she did work remotely on Ford’s failure to accommodate her illness.
The case concerns an ex-Ford worker and sufferer of irritable bowel syndrome named Jane Harris, who was fired after bringing an EEOC complaint in 2009. The EEOC sued Ford in 2011, alleging that the company violated the ADA by failing to accommodate Harris’ condition and then retaliating against her for filing a charge with the agency.
U.S. District Judge John O’Meara in Ann Arbor, Mich., tossed the EEOC’s case in September 2012, finding that Harris was a chronically absent employee and that Ford exercised its business judgment appropriately in her case. The automaker had argued that Harris’s position as a resale steel buyer wasn’t fit for telecommuting because she worked on a team and her past absences created problems for other workers.
That ruling is now history, though Ford can continue to marshal evidence that Harris’s firing was deserved when the case returns to Judge O’Meara. Gibson Dunn’s Scalia argued for Ford at the Sixth Circuit. Elizabeth Hardy of the Michigan firm Kienbaum, Opperwall, Hardy & Pelton represented the company in the district court.
Tuesday’s decision elicited a sharp dissent from Sixth Circuit Judge David McKeague, who wrote that it conflicted with past rulings and could wind up harming both workers and employers. “So the lesson for companies from this case is that, if you have a telecommuting policy, you have to let every employee use it to its full extent, even under unequal circumstances, even when it harms your business operations, because if you fail to do so, you could be in violation of the law,” McKeague wrote. “Of course, companies will respond to this case by tightening their telecommuting policies in order to avoid legal liability, and countless employees who benefit from generous telecommuting policies will be adversely affected by the limited flexibility.”