Employer Religious Accomodations

court's rhetoric, it may have gone a bit too far in stating that "[a]t a time when employers are justifiably concerned with productivity at the workplace, we are in no position to second guess Avaya's desire to directly supervise its lower level employees." Id . at 1121. Given that it is difficult to conceive of any time in the past or the future in which an employer would not be concerned with its employees' productivity, this statement is unpersuasive. Having ruled that physical presence was an essential function of the service coordinator position, the court then went on to rule that working from home was not a reasonable accommodation for Mason. Id . at 1124. This ruling was inevitable given the Tenth Circuit's recognition that the elimination of an essential function is per se not a reasonable accommodation. Id . at 1122. The court then reviewed a number of decisions, most mentioned above, in which working at home was held not to be reasonable. Id . at 1122-23 (citing also Kvorjak v. Maine , 259 F.3d 48, 51 (1st Cir. 2001) (claims adjuster); Smith v. Ameritech , 129 F.3d 857, 867 (6th Cir. 1997) (sales representative)). The Tenth Circuit distinguished Humphrey v. Memorial Hosp. Ass'n , 239 F.3d 1128, 1136 (9th Cir. 2001), in which the Ninth Circuit found a triable issue existed as to whether a medical transcriptionist's request to work at home was reasonable. In that case, however, the employer had allowed some of the other transcriptionists to work at home. Mason , 353 F.3d at 1123 (citing 239 F.3d at 1136). Similarly, in Langon v. HHS , the D.C. Circuit found a triable issue as to whether the request of a computer programmer with multiple sclerosis to work at home was reasonable. 959 F.2d 1053, 1061 (D.D.C. 1992). Langon was decided under the Rehabilitation Act, and the underlying facts arose before the ADA (with its more clearly articulated standards and burdens of proof) had been enacted. In Langon , there was a dispute of fact as to whether HHS had a policy permitting disabled employees to work at home. HHS submitted little, if any, admissible evidence that permitting the plaintiff to work at home would constitute an undue hardship. Id . at 1055, 1060. The Seventh Circuit in Vande Zande , 44 F.3d at 544-45, characterized the D.C. Circuit as disagreeing with the "majority rule" that working at home without supervision is not a reasonable accommodation. It is unclear that the employer in Langon relied on the inability to supervise the employee at home as the reason for denying her request, or why such an accommodation would

Wisconsin Dep't of Admin. , 44 F.3d 538, 544 (7th Cir. 1995) (program assistant with administrative duties). Whether the EEOC is correct that physical presence is not an essential function seems to depend on the position at issue. Certain jobs, such as night watchman, prison guard, groundskeeper, and dental hygienist, appear to require attendance. The harder question is whether office jobs, in this era of computers, e-mail, fax, and telecommuting, require regular attendance. Again, generalizations are no substitute for a detailed showing that regular attendance at the office is an essential function of a particular position. Mason , decided earlier this year, provides a tour of the legal landscape. The case has its origins in the plaintiff's witnessing of the murder of several co-workers at a postal facility in 1986. Plaintiff was subsequently diagnosed with post traumatic stress disorder (PTSD). 357 F.3d at 1117. Years later, while working as a service coordinator for Avaya, a communications company, she heard about a co-worker who had brandished a knife during a verbal dispute with another employee. As a result, the plaintiff's PTSD was triggered. Id . After the knife-wielding employee's week-long suspension ended, plaintiff was unable to work, and she requested (among other accommodations not relevant here) that she be permitted to work from home. Avaya refused. Plaintiff never returned to work and was discharged. Id at 1117-18. Avaya, Mason's employer, argued that Mason could not work from home because her service coordination position required supervision and teamwork. Id . at 1120. The evidence that Avaya submitted included a showing that all of the service coordinators work at the administration center, and none have been permitted to work elsewhere. Id . Although Mason argued that existing information technologies would permit her to work at home, she was not able to rebut Avaya's position that it could not adequately supervise her from home because, although Avaya could ascertain whether she was logged onto her computer, it could not tell whether she was actually working. Id . 1120-21. In determining that physical presence was an essential function of Mason's service coordinator position, the Tenth Circuit relied on the ADA's mandate that the employer's judgment as to which functions of the job are essential must be taken into account. The general rule is that an employer's business judgments are not to be second-guessed, and the "self-serving" nature of an employee's statements concerning the essential functions of her position are not determinative. Id . at 1122 (citations omitted). Although employers may appreciate the

UNITED STATES ATTORNEYS ' B ULLETIN

M AY 2004

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