By David J. Rowland and Danielle R. Rabie
Seyfarth Synopsis: In a 2-1 decision in Bilinsky v American Airlines, Inc., 2019 WL 2610944 (7th Cir. June 26, 2019), the Seventh Circuit recently affirmed American Airlines’ summary judgment win against a former employee who alleged American violated the ADA by failing to allow her to continue to work remotely after the American/US Airways merger. In doing, the majority made clear – as a “note of caution to future ADA litigants” – that employers must analyze what is reasonable under the ADA based upon current technological capabilities, not what was possible decades ago. The case also highlights the importance of having and updating job descriptions in the face of changed work circumstances. American survived its close call without one, but the next employer may not.
Plaintiff Bilinsky began working with American Airlines in 1991 as a “communications specialist.’’ Her job position had no formal description. Although the team Bilinsky worked with operated out of American’s Dallas headquarters, American allowed Bilinsky to work remotely from Chicago due to her multiple sclerosis. Multiple sclerosis is aggravated by heat which prevented Bilinsky from living in Dallas year-round. However, in 2013 American Airlines merged with US Airways and the merger caused American to restructure all of their departments. American found that the merger fundamentally changed the nature of Bilinsky’s position and that the new position required consistent, physical presence. Accordingly, American offered to relocate Bilinsky to the Dallas office, but Bilinsky refused. American then attempted to find other positions for Bilinsky. Unfortunately, Bilinsky either was not qualified for, or not interested in the positions American suggested. As a result, American terminated Bilinsky, and she then sued American under the Americans with Disabilities Act (“ADA”) for failing to accommodate her disability. On motion for summary judgment, the district court held that American acted lawfully when it terminated Bilinsky because she was no longer a qualified individual with a disability—she could not perform the essential function of the position in light of the changes in her job requirements. The question on appeal was: Did the district court act properly when it found that Bilinsky was no longer a “qualified individual?”
The ADA prohibits discrimination against individuals with disabilities who, with or without reasonable accommodations, can perform essential job functions. Typically, courts look at job descriptions to determine if something is truly an essential job function. However, Bilinsky’s position had no job description and required the Majority to determine the essential job functions in its absence.
In lieu of a job description, the majority (Judges Kanne and Easterbrook) analyzed statements from multiple American employees who attested to the major changes the merger brought. They all stated that the merger forced American to massively restructure its business operations across all departments. Put simply, the restructuring caused Bilinsky’s work to evolve from independent activities to team-centered crisis management activities. This switch necessarily required frequent face-to-face meetings that Bilinsky could not participate in. Consequently, the majority determined Bilinsky was no longer a qualified individual and could not perform the essential job functions while working remotely. In support, the Majority also cited Seventh Circuit precedent which states “[j]ust as an employer is not required to create a new position or strip a current job of essential functions [under the ADA], an employer is not required to maintain an existing position or structure that, for legitimate reasons, it no longer believes is appropriate.”
The majority stressed that its holding in this case was extremely fact specific and that it is confined to the unique facts and circumstances the merger presented. The majority reiterated that employers cannot simply rescind an accommodation because it is inconvenient or burdensome and, instead, must utilize all available technologies to reasonably accommodate employees who can otherwise perform essential job functions. In doing so, it acknowledged that the Seventh Circuit’s pronouncement from 24 years ago that working from home as an accommodation would only be required in the “extraordinary case” is less true now.
Judge David Hamilton dissented. Although Judge Hamilton agreed with much of the majority’s legal analysis, and applauded the majority’s recognition that prior holdings regarding “working from home as a reasonable accommodation require a fresh look today”, he would have found that there is a dispute of fact for a jury to resolve as to whether in-person presence was an essential job function after the merger. Judge Hamilton observed that the “unusual absence of a written job description position” should “raise our eyebrows”, and that courts should not simply take an employer’s claims about a job’s essential functions at face value.
Viewed in a light most friendly to Bilinsky, the evidence showed that while presence in the office might be preferred by American, it had not been shown to be essential. Judge Hamilton further noted that while it would certainly be easier for American if Bilinsky operated out of Dallas, that is not the standard of the ADA. The ADA requires employers make sacrifices in order to hire and retain workers with disabilities and Bilinsky’s accommodation was one of those sacrifices. As a result, Judge Hamilton would have held that a jury should decide whether physical presence is an essential job function of Bilinsky’s position.
American Airlines narrowly avoided a legal tailspin- i.e., a jury trial – in this case. The key takeaways for employers are:
- Although they will assess other evidence, courts look heavily to job descriptions in determining essential job functions. Employers should keep these descriptions as accurate and up to date as possible.
- Restructuring is a legitimate complication and can change the essential job functions for various employees. These changes should be reflected in new job descriptions.
- The pace of technological advancement is dizzying. With that rapid change comes the need to consider technological solutions to barriers to employment for individuals with disabilities. Remote work arrangements are certainly more common and can be far more effective than they once were.
If you have any questions regarding this area or need assistance evaluating personnel decisions relating to employees’ requests for accommodations, please contact the authors, your Seyfarth Attorney, or any member of Seyfarth Shaw’s Absence Management and Accommodations.