Here were are again.
Another ADA case. Another Sixth Circuit appeal (Hostettler v. College of Wooster – opinion here). Another request for a modified work schedule. And another unsuccessful plaintiff at the lower court.
But, this wasn’t just any plaintiff.
This was a full-time HR Generalist seeking a part-time work schedule following the birth of her child. (She developed postpartum depression and separation anxiety.) Thus, the issue was whether regular attendance is an essential job function for an HR Generalist.
Regular attendance as an essential job function.
Now, this isn’t the first time that the Sixth Circuit had dealt with regular attendance at work as an essential function under the ADA. In EEOC v. Ford Motor Company, the Sixth Circuit (here) reaffirmed that regular attendance often is an essential function of the job. Thus, if an employee with a disability wants to telecommute instead, that’s not a reasonable accommodation that will allow her to perform those essential job functions.
But even though an employer claims that attendance is an essential job function — heck, it may be right there in the job description — the court doesn’t have to take the company’s word on it. Instead, the court needs to know that the company practices what it preaches. In Ford Motor Company, the automaker had evidence to support its position. For example, it tried allowing the plaintiff to telecommute. The plaintiff could not get her job done. The employer also provided examples of why coming to the office was essential (e.g., the need to collaborate in person, interact face-to-face with customers, etc.)
Sometimes, but not always.
In Hostetler v. College of Wooster, it was less than clear that the plaintiff needed to show up to work all the time each week. Consider the following:
- One of the plaintiff’s colleagues submitted a declaration acknowledging that the plaintiff was able to complete her job with a combination of face time at the office and work from home. This same colleague was unaware of any task that the HR Department failed to complete after the plaintiff went part-time.
- The plaintiff’s manager testified that the plaintiff always performed her responsibilities and finished her assignments on time. Additionally, the manager’s first evaluation of the plaintiff, done in June or July of 2014—shortly before the plaintiff was fired —contained no negative feedback but instead concluded that “Heidi is a great colleague and a welcome addition to the HR team!”
- The plaintiff testified that, when another HR employee took leave after the plaintiff returned, the plaintiff did not feel the pinch.
- Although the timeline changed as to when the plaintiff would be able to return to work full-time, she never requested an indefinite transition from full-time to part-time.
Based on these facts, and others, the Sixth Circuit did not hesitate to reverse the lower court’s grant of summary judgment in favor of the employer on the plaintiff’s ADA claims.
Could this have been one of those cases where the employer outsmarted itself?
I picture someone from the College of Wooster attending a local CLE or HR event at which the speaker addressed regular attendance as an essential job function under the ADA. And then that person comes back to the office and thinks, “Hey. Our HR Generalist job description requires regular attendance, and Ford Motor Company is a Sixth Circuit case. So, if we fire the plaintiff, we should be good.”
I wonder if the employer became so fixated on the rule of law, that it faltered by not taking a more holistic approach. Without proper perspective, the employer ignored the data points that the Sixth Circuit highlighted when it ultimately reversed the lower court’s rulings.
Therefore, my non-legal advice to you is to not only know the rules but how to apply them. Consider that maybe your job description doesn’t reflect the realities of the workplace. Plus, I know it’s a bit of a double-edged sword to provide an employee returning from disability leave with a critical performance review. But, giving someone a glowing performance review only to turn around and fire that person ostensibly because she cannot perform the job…how does that work?
Finally, to the lawyers, think twice before spending almost 17 pages of your appellate brief arguing that a plaintiff’s mix of postpartum depression and separation anxiety is not a disability under the ADA. That’s just plain tone deaf.