Tag Archives: 6th Circuit court of appeals

Is Attendance An Essential Function Of The Job?

In E.E.O.C. v. Ford Motor Co., 2014 WL 1584674 (6th Cir. 2014), the Sixth Circuit Court of Appeals weighed on the issue of essential functions of a job under the American Disabilities Act.  Specifically, whether physical presence was one of these.  The Sixth Circuit remanded the summary judgment decision because it found that there is a genuine issue of whether this was the case.  The Court noted that courts should consider that while physical presence is required for some jobs, it is not required for all positions.

In this case, the plaintiff suffered of irritable bowel syndrome, which often made her unable to control her bowel. The plaintiff requested accommodations by allowing to telecommute. Since this was denied, the plaintiff had to take FMLA leave, which caused her to miss work and her work suffered.  Consequently, she was terminated.

It reasoned:

When we first developed the principle that attendance is an essential requirement of most jobs, technology was such that the workplace and an employer’s brick-and-mortar location were synonymous. However, as technology has advanced in the intervening decades, and an ever-greater number of employers and employees utilize remote work arrangements, attendance at the workplace can no longer be assumed to mean attendance at the employer’s physical location. Instead, the law must respond to the advance of technology in the employment context, as it has in other areas of modern life, and recognize that the “workplace” is anywhere that an employee can perform her job duties. Thus, the vital question in this case is not whether “attendance” was an essential job function for a resale buyer, but whether physical presence at the Ford facilities was truly essential. Determining whether physical presence is essential to a particular job is a “highly fact specific” question.

Id. at *6 (emphasis added).

The reach of the opinion is unclear.  The Court also noted:

It is important, at this juncture, to clarify that we are not rejecting the long line of precedent recognizing predictable attendance as an essential function of most jobs. Nor are we claiming that, because technology has advanced, most modern jobs are amenable to remote work arrangements. As we discussed above, many jobs continue to require physical presence because the employee must interact directly with people or objects at the worksite. See, e.g., Melange, 482 F. App’x at 84 (custodian). We are merely recognizing that, given the state of modern technology, it is no longer the case that jobs suitable for telecommuting are “extraordinary” or “unusual.” Vande Zande, 44 F.3d at 545; Smith, 129 F.3d at 867–68. When we decided Smith in 1997, we responded to the world as it then existed; however, in the intervening years, communications technology has advanced to the point that it is no longer an “unusual case where an employee can effectively perform all work-related duties from home.”

Id. at *11 (emphasis added).

This decision is interesting in many different levels.  First, the use of technology is being considered as a reasonable accommodation. Second, it adds to the trail of cases focusing on electronic communications.

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Filed under ADAAAA, civil rights, courts, Disability, discrimination, employment, federal, labor, legal decision, technology, Title VII

En Banc 6th Circuit Overturns Voter-Mandated Affirmative Action Ban in Michigan

An en banc federal appeals court has struck down a voter-approved ban on affirmative action in Michigan as a violation of the equal protection clause.

The Cincinnati-based 6th U.S. Circuit Court of Appeals said the ban on affirmative action in university admissions placed an unfair burden on supporters of racial preferences, whose only option would be to amend the state constitution. The New York Times, the Detroit News, the Detroit Free Press and Education Week have stories on the decision.

Unlike supporters of affirmative action, a student who wants alumni connections considered in admissions has a wide variety of options, including lobbying admissions committees and petitioning university leaders, the court majority said in the 8-7 decision PDF. The affirmative action ban undermines the right of citizens to “have equal access to the tools of political change,” according to the majority.

Michigan is among eight states that ban universities from considering race in admissions, according to the Times. The San Francisco-based 9th U.S. Circuit Court of Appeals has upheld California’s ban.

The 6th Circuit decision is Coalition to Defend Affirmative Action v. University of Michigan. The ruling comes as the U.S. Supreme Court is considering a university’s use of affirmative action in Fisher v. University of Texas at Austin. The Fisher case revisits the Supreme Court’s 2003 holding in Grutter v. Bollinger, in which the Supreme Court held 5-4 that universities may use race as a factor in admissions.

via En Banc 6th Circuit Overturns Voter-Mandated Affirmative Action Ban in Michigan – News – ABA Journal.

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