When the ADA comes into play, how can we prove an aspect of the job is an essential function?
Quick Answer
Describe the function clearly in a written job description that says the function is essential, and be ready to show you would be severely impacted in a negative way if the function is not performed.
Legal Perspective
Shawe Rosenthal
Baltimore, Maryland
There are several ways employers can show a job function is essential, says employment law attorney Fiona Ong of the firm Shawe Rosenthal LLP. One of the best ways an employer can establish an essential job function is by listing it as essential in the job description and making sure the description is accurate. Other ways to strengthen your case:
- Show past and present workers in that position perform the function regularly, and
- Demonstrate a negative impact if the function isn’t performed.
Employers should note that allowing employees temporary exemptions from these functions doesn’t make them non-essential, but long-term exemptions could weaken the argument that they’re essential.
Relevant Case Law
Kauffman v. Petersen Health Care VII, LLC
Colonna v. UPMC Hamot
HR Insight
Village of Maywood
Chicago, Illinois
First and foremost, the specific aspect of the job needs to be included in the job description, says HR Director James Ellexson. It also needs to be proven that it’s an essential part of the position that could impact the overall productivity or performance of that position.
National Council on Alcoholism & Drug Dependence of the San Fernando Valley
Van Nuys, California
Director Doreen Garcia says: Factors for consideration in determining a job function may include whether the reason for the job position exists to perform the task, and the number of other employees available to perform the task or among whom the task can be distributed.
The Cost of Noncompliance
Long-term employee fired after diagnosis of vision impairment: Employer pays $35K
Who was involved: Brock Services, LLC, an industrial contractor in Texas, and an employee who had worked for the company for eight years.
What happened: After learning an employee had a vision impairment relating to glaucoma in one eye, the company required him to undergo three eye examinations. Despite his condition, he could perform the essential functions of the job, according to the EEOC’s lawsuit. After the third exam, he was fired.
Result: The company paid $35,000 to settle the dispute. In addition to the financial payout, the company was required to:
- Stop engaging in such discriminatory conduct.
- Conduct ADA training for its managers.
Info: Brock Services to Pay $35,000 to Settle EEOC Disability Discrimination Lawsuit, 7/16/20.
Company pays $49K to worker with disabilities who was fired right after orientation
Who was involved: ASICS America Corporation, an athletic apparel manufacturer, and an individual with disabilities who was assigned by a staffing agency to work at a warehouse distribution center in Byhalia, Mississippi.
What happened: After the worker completed the orientation program, HR allegedly told the woman that the company couldn’t employ her due to her disabilities. The EEOC alleged the company failed to engage in the interactive process with the worker to determine whether she could perform the essential functions of the position.
Result: The company paid $10,000 in back pay and $39,650 in compensatory damages to the woman. Under the agreement, it also had to:
- Review and revise its written policy on disability discrimination to include processes to request reasonable accommodations.
- Distribute the policy to all employees who worked in the Byhalia location and have them sign an acknowledgment receipt within 90 days.
- Provide training to all managers and HR employees on disability discrimination and reasonable accommodations.
Info: ASICS America Corporation to Pay $49,650 to Settle EEOC Disability Discrimination Lawsuit, 7/6/20.
Senior living center pays $115K to settle EEOC claims filed on behalf of worker hurt on the job
Who was involved: Heart of CarDon, a senior living community in Indiana, and an employee who worked as a certified nursing assistant with lifting restrictions that stemmed from an on-the-job injury.
What happened: The EEOC lawsuit alleged the nursing assistant could not perform the essential functions of her job due to the lifting restrictions. The employee expressed an interest in other positions that would not violate the lifting instructions, but the company refused to transfer her to the open positions, the EEOC said.
Result: The company paid $115,000 to the worker. Under an 18-month consent decree, it also had to:
- Assign an HR manager to work with employees who can no longer perform their job duties because of a disability to evaluate transfer as a reasonable accommodation.
- Provide ADA training.
- Post a notice about the settlement.
- Submit periodic compliance reports to EEOC.
Info: Heart of CarDon to Pay $115,000 to Settle EEOC Disability Discrimination Lawsuit, 4/4/22.
Key Takeaways
- Essential job functions are basic job duties an employee must be able to perform, with or without reasonable accommodation.
- Employers must carefully examine each function to determine whether it is really essential to the job.
- Factors to consider in determining whether a particular function is essential include whether the position exists to perform the function; the number of other employees who are available to perform it; and the degree of skill or expertise that is needed to perform it.
- Other relevant factors include the actual work experience of others who perform the job; the time spent performing the function; the consequences of not performing it; and the terms of any applicable collective bargaining agreement.
- A job function can be essential even if it is infrequently performed.
INSIDER CONTENT
Q&As