May 21, 2022

Volume XII, Number 141

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May 19, 2022

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Where’s Barnett? “Two-Step” Analysis Missing in ADA Telecommuting Accommodation Case - Americans with Disabilities Act

The Sixth Circuit’s decision in EEOC v. Ford Motor Company is so rich with disability management lessons that one post just does not do it justice.  So here is my second post on that case. (The first is here.) There will be more to come.

As we have discussed, the Supreme Court of the United States in its 2002 decision in US Airways v. Barnett held that there is a two step process to evaluate whether a requested accommodation is reasonable.  The Court held that an employee has the burden of proving that a requested accommodation is reasonable “in the run of cases” by showing that the accommodation is “reasonable on its face” or, if it is not, that “special circumstances” make the accommodation reasonable in the specific situation (the first step).  If the plaintiff meets this burden, the employer may argue that the proposed accommodation poses an undue hardship on its operation (the second step).

A significant issue in EEOC v. Ford Motor Company was whether a team member’s request to work at home up to four days a week was a request for a reasonable accommodation. One would anticipate that the Barnett “two-step” would be the framework of analysis.  But in Ford, there is no reference to Barnett, and no analysis of whether a team member’s request to work up to four days per week at home is reasonable “in the run of cases” or reasonable “on its face” or whether special circumstances make it so.  Not in the majority opinion and not in the dissent.

Instead, the court used the one-step approach advocated by the EEOC–a requested accommodation is reasonable unless the employer can establish that it is an undue hardship.  As we have posted previously, we refer to the approach of not applying the Barnett “two step” in favor of applying the “one step” as the “Barnett Slide.”

Jackson Lewis P.C. © 2022National Law Review, Volume IV, Number 141
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About this Author

Michael Soltis, Jackson Lewis Law Firm, Disability and Health Management Attorney
Office Managing Principal and Office Litigation Manager Stamford

Michael J. Soltis is Office Managing Principal and Litigation Manager of the Stamford, Connecticut, office of Jackson Lewis P.C. He has represented employers in a wide range of employment and labor matters for more than 30 years.

Mr. Soltis has advised on and litigated matters involving just about every type of employment claim, including discrimination claims, family and medical leave claims, public policy and whistleblower claims, contract claims, and common law employment claims. He has litigated cases in state court and...

203-961-0404
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