The Americans with Disabilities Act (ADA) requires that an employer reasonably accommodate an employee with a disability unless the proposed accommodation would impose an undue hardship. Often, one of the first accommodations requested by employees is the ability to work at home rather than come into the workplace. Sometimes such requests flow from genuine needs related the employee’s disability, but other times they stem from the employee’s desire to be away from the day-to-day oversight of the employer.
Courts that have looked at this issue usually have determined that working from home is not a reasonable accommodation, recognizing (rightly, we think) that working at home makes supervision and interaction with coworkers more difficult. Over the years, the fact that so many courts reached the same conclusion about working from home gave a certain amount of comfort to employers that denied such requests. They could be reasonably certain that their decisions either would not be subject to challenge under the ADA or, if challenged, would not be second guessed.
On April 22nd, however, the Sixth Circuit Court of Appeals (which hears appeals from federal district courts in Kentucky, Michigan, Ohio, and Tennessee) departed from this trend and held in Equal Employment Opportunity Commission v. Ford Motor Company that working from home may be a reasonable accommodation in some situations. The court distinguished earlier cases by explaining that technology has extended the workplace beyond the office’s brick and mortar walls and made telecommuting more viable.
The decision in the Ford Motor case likely opens the door to more accommodation requests from employees involving working at home, and ensures greater scrutiny by courts of an employer’s reasons for denying such requests. Going forward, employers will need to closely examine the pros and cons of any bid to telecommute, as an automatic denial will be more risky under the ADA. In addition, employers should reassess their job descriptions and determine whether a physical presence in the office is an essential job function. Furthermore, employers need to consider that if they allow some employees to telecommute, courts may assume that telecommuting would be a reasonable accommodation for other employees.
Yesterday’s Supreme Court decision in Schuette v. Coalition to Defend Affirmative Action is attracting a fair amount of attention in the news media. From an employment law perspective, the case likely will have little impact. In a decision drafted by Justice Kennedy, the Court held that states are free (in this circumstance, through a ballot referendum) to decide that they will not take race or gender into consideration in making admissions decisions to public universities. The Court’s decision did not affect the legality of voluntary affirmative action programs maintained by private employers or the federal government’s affirmative action rules. Indeed, coverage of the decision often treats all “affirmative action” as meaning either explicit quotas or overt consideration of race or gender in decision-making. However, the type of affirmative action carried out by private employers (except in cases where the affirmative action is ordered as a remedy for past discrimination) typically involves only increased efforts to reach out to underrepresented minorities and eliminate obstacles to their hiring and advancement. This type of affirmative action is likely to continue regardless of the increasing number of decisions and state laws limiting the use of quotas and preferences. The full Supreme Court’s decision in Schuette can be read here.
Over the last couple years, the EEOC has been taking aim at companies that use credit checks as part of the application process, arguing that excluding applicants based on credit checks has a disparate impact on minority applicants.
However, on Wednesday, the U.S. Court of Appeals sitting in Ohio dealt the EEOC a significant setback. In its decision in EEOC v. Kaplan Higher Education Corp., the 6th Circuit Court of Appeals found that the EEOC’s expert witness could not be relied upon to establish discrimination because his analysis was “unreliable”. As such, the appellate court upheld the lower court’s ruling in favor of Kaplan. The appellate court’s opinion closes with a damning statement regarding the EEOC’s credit check cases: “The EEOC brought this case on the basis of a homemade methodology, crafted by a witness with no particular expertise to craft it, administered by persons with no particular expertise to administer it, tested by no one, and accepted only by the witness himself. The district court did not abuse its discretion in excluding [the expert’s] testimony.”
It remains to be seen whether the EEOC will heed the court’s admonition or continue to push forward. Regardless, unless and until the EEOC finds an alternate way to establish that credit checks have a disparate impact on minority applicants, the Kaplan decision gives employers a strong response to any claim that relying on credit checks constitutes discrimination.
The city of Chicago has decided that electronic cigarettes (e-cigarettes) should be treated the same way as more conventional cigarettes. Effective April 29, 2014, e-cigarettes will be banned in enclosed public places and enclosed places of employment in the city of Chicago as a part of the Smoke Free Illinois Act and the Clean Indoor Air Ordinance.
Promoted by some as a healthier alternative to smoking cigarettes, e-cigarettes use a heating element to vaporize a liquid solution that contains nicotine and flavorings, or a flavored vapor without nicotine. Chemicals are emitted from e-cigarettes when the vapors are exhaled. With no guidance from the Food and Drug Administration about e-cigarette safety, city councils across the country are making their own decisions. Chicago joins New York City and a handful of cities and states to include e-cigarettes in their indoor smoking regulations.
Chicago’s Clean Indoor Air Ordinance, effective since 1988, prohibits smoking in virtually all enclosed public places and enclosed places of employment, and within 15 feet of the entrance of these establishments.
Employers in the city of Chicago should update their policies, handbooks, and workplace postings to reflect this new ordinance.