Coming Soon: Telecommuting as Reasonable Accommodation in Seventh Circuit
For years, the Seventh Circuit has maintained its position that telecommuting is an unusual accommodation under the Americans with Disabilities Act of 1990 (ADA), Pub.L. No. 101-336, 104 Stat. 327, that would only be found reasonable in “very extraordinary” cases. See Vande Zande v. State of Wisconsin Departmentt of Administration, 44 F.3d 538 (7th Cir. 1995). However, in Bilinsky v. American Airlines, Inc., No. 18-3107, 2019 WL 2610944, *6 (7th Cir. Jun. 26, 2019), the court indicated that it is positioned to reevaluate this holding and issued an express “note of caution to future ADA litigants” of such.
Background on the ADA and Bilinsky’s Claims
The ADA prohibits employers from discriminating against qualified individuals on the basis of disability. One form of discrimination is the refusal to provide reasonable accommodations to qualified employees with disabilities, unless the employer can demonstrate that the accommodation would impose an undue hardship on its business operations.
Bilinsky worked for American Airlines as a communications specialist. After she was diagnosed with multiple sclerosis, Bilinsky requested, and American Airlines granted, her an accommodation that allowed her to work from home in Chicago while the majority of her department worked at the company’s headquarters in Dallas. Bilinsky’s position had no formal, written job description but included duties such as producing e-mail communications to employees and publishing articles to be read by flight attendants.
In 2013, in response to American Airlines’ merger with US Airways, Bilinsky’s department was reorganized and assigned additional responsibilities. Because the additional work assigned to the department caused the Dallas employees to feel “spread very thin,” the vice president decided that all employees had to be physically present in Dallas. Bilinsky opposed the move and refused to relocate. Bilinsky continued to perform her job without any complaints regarding her performance, except that her immediate supervisor reported that she “wasn’t able to do things that you needed to do to support an event. You can’t drive to the hotel that’s in Dallas if you’re in Chicago.” 2019 WL 2610944 at *2. Bilinsky was eventually discharged when she refused to relocate.
Bilinsky filed a charge of discrimination with the Equal Employment Opportunity Commission (EEOC) and then a lawsuit alleging, in part, that American Airlines failed to accommodate her disability under the ADA. The district court granted summary judgment for American Airlines finding that Bilinsky was not a qualified individual under the ADA.
The Seventh Circuit Agreed Bilinsky Was Not a Qualified Individual
The focus of the argument and analysis in Bilinsky was the appropriate legal standard for determining whether an employee is a “qualified individual” under the ADA, which was noteworthy in and of itself.
To be a qualified individual, one must be able to perform the essential functions of his or her job. The ADA statute lists two factors to be considered when determining whether a job function is essential, while the EEOC, in its interpretative guidance, sets forth a different analysis with multiple factors to be weighed. After noting the conflicting analyses between the statute and the EEOC’s interpretation, the Seventh Circuit affirmed its prior holdings, stating that the EEOC’s interpretation of the ADA is not entitled to any special deference by the courts. In accordance with this position, the court determined the essential functions of Bilinsky’s job by considering only the two factors set forth in the ADA statute, which are
the employer’s judgment as to what functions of the job are essential and
the written job description for the position, if the employer has prepared one.
The Seventh Circuit was quick to point out that the employer’s judgment is not the controlling factor, though it is important. The court stated that while it considers whether the employer actually requires all employees in a particular position to perform the purported essential duties, it does not second-guess an employer’s judgment in describing the essential functions of the position.
Because American Airlines had no written job description for Bilinsky’s position post-merger, the court had to review the granting of summary judgment based on testimonial evidence from Bilinsky and other employees. This evidence included testimony on the changed nature of the department’s work from independent activities to team-centered crisis management activities, testimony regarding change in duties for everyone in the department, and testimony from Bilinsky’s supervisor that Bilinsky was not able to do the things that were needed to support the company’s live events. Upon review, the Seventh Circuit agreed with the district court that Bilinsky had not met her burden to withstand the motion for summary judgment.
Seventh Circuit Issues a “Note of Caution” to Future ADA Litigants
While the court could have ended its analysis there, it took the opportunity to forecast a change to its position on telecommuting accommodations. In particular, the court stated that in the 24 years since its Vande Zande decision, communications technology has advanced to the point at which such an accommodation is not quite as an extraordinary as it once was. The court reminded litigants that the inquiry as to whether an accommodation is reasonable is “context-specific” and that not every job requires face-to-face collaboration. Furthermore, the court stated, “Litigants (and courts) in ADA cases would do well to assess what’s reasonable under the statute under current technological capabilities, not what was possible years ago.” 2019 WL 2610944 at *6.
Litigants should heed this warning and ensure they are analyzing accommodations under today’s technological capabilities, rather than those in place at the time of courts’ earlier decisions.
For more information about employment and labor law, see EMPLOYMENT DISCRIMINATION: UNLAWFUL GROUNDS AND PREVENTION — 2019 EDITION. Online Library subscribers can view it for free by clicking here. If you don’t currently subscribe to the Online Library, visit www.iicle.com/subscriptions.