In his classic 1998 business book “Who Moved my Cheese?,” Spencer Johnson discussed the need for businesses and employees to focus on the need to adapt to changes in their industries. In our practice, we frequently see claims filed by employees resistant to change. They argue that their performance was apparently fine for a number of years, until a new manager or corporate initiative caused them to fall out of favor. They then attribute their problems not to changes in the business, but instead to some discriminatory motivation.
Believe it or not, federal courts and administrative agencies generally understand that business needs are not static, and that employers periodically need to change their expectations of employees. A good example of this principle came last week from the Seventh Circuit Court of Appeals. In Bilinsky v. American Airlines, Inc., the plaintiff was a communications specialist who suffers from multiple sclerosis. For years, American accommodated her condition by allowing her to telecommute from her home in Illinois.
In 2013 following its merger with U.S. Airways, the employer reorganized its communications team, requiring that all employees work at the company’s Fort Worth headquarters. American changed the job, focusing more on crisis management and live events. American told the plaintiff that it needed her to work from headquarters so that she could participate in person and on short notice in meetings with other team members. The plaintiff declined the transfer offer, claiming that the Texas climate would exacerbate her MS symptoms. She then sued American, alleging failure to accommodate under the ADA.
In a 2-1 decision, the Seventh Circuit upheld a grant of summary judgment for the defendant. The court did not contest the plaintiff’s claim that she had adequately performed her duties for years, or the she could not relocate due to her health condition. However, the Seventh Circuit concluded that she was no longer able to perform the essential functions of the job as it changed following the merger. Whether the job functions slowly change over time or all at once, employers have the right to revisit past accommodations to determine whether they allow the employee to meet these new expectations.
The dissenting judge believed that a jury should make the determination as to whether the plaintiff could perform the essential functions of the job from home. The majority noted that in many circumstances, this question is appropriate for jury consideration. However in this case, the merger presented a clear event that resulted in inevitable changes to the job. The majority also noted that improving communications technologies make telecommuting a viable accommodation in many circumstances.
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