Parsons Behle & Latimer Legal Briefings
Kelsie A. Kirkham
Job descriptions invariably serve many purposes. Recent federal Courts of Appeals decisions (some of which are shown below) demonstrate that employers can rely on well-written job descriptions to defend against Americans with Disabilities Act (ADA) claims by employees.
When facing an ADA claim, Courts of Appeals have consistently ruled in favor of employers when two questions can be answered affirmatively:
First, does the job description support the employer’s position that the job duty under complaint is an essential function of the job?
Second, is the job duty under complaint consistently applied in practice?
Essential Functions Are Not Entitled to ADA Protection
Essential functions are the fundamental job duties of an employment position. If a disabled person cannot perform a job’s essential functions (even with a reasonable accommodation) then the employee is not qualified, and the ADA’s employment protections do not apply to that employee. Thus, the employer cannot be liable for failing to accommodate such employee. Ultimately, this is one of the best defenses of an ADA claim.
Generally, courts will not second-guess essential functions within job descriptions if the description is prepared before hiring begins. This is of critical importance. The job description must have been in place prior to asserting an essential job function defense. The U.S. 9th Circuit Court of Appeals gives substantial deference to an employer’s judgment when those duties are job-related, uniformly enforced and consistent with business necessity.
Various case studies below show how employers have successfully defended ADA claims by employees. In each of the case studies, notice that the employers argued the complained-of job duty was an essential job function, pointing to job descriptions to support their positions.
Overtime as an Essential Function
Courts are siding with employers when overtime is critical to a business model and where the requirement is spelled out in the job description.
Jerry Faidley worked as a UPS package delivery driver. While working for UPS, Faidley suffered two separate back injuries and underwent hip replacement surgery. Faidley’s doctor placed him on a permanent eight-hour-per-day work restriction because of his hip replacement and degenerative disc disease which caused Faidley hip and back pain after eight hours of repetitive lifting, walking, climbing and standing. Accordingly, Faidley requested an eight-hour work day accommodation.
The requirement to work overtime was listed in UPS’s package delivery driver job description and the collective bargaining agreement required UPS to assign drivers to no more than nine-and-a-half hours per day. UPS declined Faidley’s requested accommodation based on its determination that being able to work more than eight hours a day was an “essential function” of the package driver job.
On appeal, the Court agreed with UPS. In addition to relying on the job description and labor agreement, the Court considered the consequences of Faidley not working overtime which would necessitate overtime for other drivers to avoid late package delivery. Emphasizing the importance of overtime for UPS’s business, the Court stated that a task can be an essential function even if it is not performed frequently but is significantly important when the need arises.
Rotating Shifts as an Essential Function
Scheduling requirements can also serve as a strong defense when the requirement is anchored to the “realities” of the workplace, regardless of the type or length of shift.
Victor Sepúlveda was an assistant manager for Burger King. Burger King required all assistant managers to work rotating shifts, which was stated in the newspaper advertisement for the job, in the job application which Sepúlveda filled out and signed, and in Burger King’s written job description.
At the conclusion of a night shift, Sepúlveda was attacked at gunpoint, hit over the head and his car was stolen. As a result, he suffered from PTSD and major depression disorder. Sepúlveda requested a fixed-day schedule and a transfer to a safer area. Burger King temporarily accommodated his request but later returned him to rotating shifts. Sepúlveda resigned and sued under the ADA, claiming he was denied a reasonable accommodation.
On appeal, the Court sided with Burger King, finding that since Sepúlveda was not able to work rotating shifts, he was unqualified to perform an essential function of the job, which was explicit in Sepúlveda’s job description. The court also found that accommodating Sepúlveda permanently would have had the adverse impact of inconveniencing all other assistant managers. Although Burger King initially temporarily granted Sepúlveda the accommodation, the temporary accommodation did not change rotating shifts into a non-essential function.
Evolving Business Models Can Affect Essential Functions
Job tasks can also serve as essential functions, even tasks that evolve over time. To stay protected, written job descriptions must evolve over time as well. Consider the following example:
Rite Aid began requiring its pharmacists to perform immunizations – a task that wasn’t previously required. When it adopted this revised business model, Rite Aid concurrently revised its job description to require pharmacists to hold a valid immunization certificate and included a reference to immunizations in the list of “essential duties and responsibilities” for pharmacists.
Christopher Stevens had been a pharmacist with Rite Aid for many years when his job description was modified to require administering immunizations. Rite Aid required all pharmacists, including Stevens, to review and sign the revised job description during the transition. After receiving this notice, Stevens requested an accommodation under the ADA and provided medical documentation to Rite Aid that he was needle phobic and unable to administer immunization by injection. Stevens was ultimately terminated for refusing to perform customer immunizations, which were an essential function of his job. Stevens then sued under the ADA.
The Court overturned a jury award on appeal and agreed with Rite Aid’s decision to terminate Stevens, finding that once Rite Aid made a business decision to start requiring pharmacists to perform immunizations, this became an essential part of the pharmacists’ jobs. Because Stevens’ needle phobia rendered him unable to perform an essential function of the job, his disability rendered him unqualified for the job. Thus, Stevens was not entitled to protection under the ADA.
Essential Functions Must be Applied in Practice
While job descriptions will be given substantial weight in defending an ADA claim, practical job performance is of equal critical importance. A common theme of courts finding employers liable for an ADA claim can be found in scheduling and attendance. Consider the following case study:
Jai Morin was an assistant manager in a store meat department. The company had a policy that provided that assistant managers were expected to work one late shift (until at least 7 p.m.) each week.
Morin suffered from chronic Lyme disease, which caused fatigue, dizziness and pain that worsened later in the day. He provided his employer with medical documentation indicating he had a disability that rendered him unable to function well at the end of the work day. To accommodate the disability, Morin’s doctor asked that the company schedule him so that he finished work by 2:30 p.m. each day.
The company rejected Morin’s request as unreasonable, arguing that maintaining the standard schedule of one late shift per week was essential to the job. Morin responded to the company’s defense by noting the lack of any such requirement in his job description. Further, Morin offered proof that he had been consistently working a schedule ending at 1:30 or 2:30 p.m. for the previous five years. Morin also provided evidence that he had received positive performance evaluations and had received four bonuses based upon his performance.
The Court found in favor of Morin because the company had not shown that adhering to a standard work schedule was an essential function of the job. The court relied on the lack of any schedule requirements in the job description. The court also recognized Morin’s consistent schedule for the previous five years and his positive performance evaluations. Therefore, Morin was qualified for the position and was entitled to protection under the ADA.
Practical Implications and Best Practices
The complex question of what constitutes an essential job function involves fact-intensive considerations and must be determined on a case-by-case basis. In making this determination under the ADA, courts heavily consider an employer’s judgment as to what functions of a job are essential. Under the ADA, job descriptions that are written prior to advertising for a position or interviewing applicants will be considered substantial evidence of the essential functions of the job. Employers must also consider the consequences of failing to require an employee to perform the essential function as well as ensure that asserted requirements are solidly anchored in the realities of the workplace.
To contact Kelsie Kirkham about this or other employment-related issues, call (208) 522-5234.