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«Brief No. 22 EMPLOYMENT May 2014 Legal Briefings Prepared by: Barry C. Taylor, Vice President of Systemic Litigation and Civil Rights and Rachel M. ...»

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Brief No. 22


Legal Briefings

Prepared by:

Barry C. Taylor, Vice President of

Systemic Litigation and Civil Rights and

Rachel M. Weisberg, Staff Attorney, with

Equip for Equality

Qualified Under the ADA: The New Legal

Battleground After the ADA Amendments Act1

Since Congress passed the ADA Amendments Act in 2008, courts have largely

complied with the Act’s directive to construe the definition of disability “in favor of broad coverage... to the maximum extent permitted by the terms of th[e] Act.”2 As a result, courts are now spending less time analyzing whether a plaintiff has a disability as defined by the ADA,3 shifting the legal battleground in ADA cases to whether a plaintiff is “qualified.” As an example of the stark contrast between pre- and post-ADA Amendments Act cases, some employers in recent ADA cases have opted not to even challenge whether the plaintiff has a disability, focusing exclusively on whether the individual is qualified.4 This shift is not completely unexpected. In fact, legal scholars predicted that the broadened definition of disability under the ADA Amendments Act would result in more cases focusing on whether an individual is qualified with or without a reasonable accommodation.5 One scholar even conducted a study of post-ADA Amendments Act cases and concluded that a greater prevalence of ADA decisions focus on whether the plaintiff is a qualified individual.6 Due to the renewed attention to the issue of qualified, it is important for people with disabilities and employers to understand issues related to the term’s definition and interpretation. This Legal Brief reviews the definition of qualified as defined by the ADA, outlines the definition of “qualified” as interpreted by the Equal Employment Opportunity Commission (EEOC), and explores how courts are analyzing cases where the core issue is whether the plaintiff is qualified.

Statutory and Regulatory Definition of Qualified According to the statutory text, a “qualified” individual is one “who, with or without reasonable accommodation, can perform the essential functions of the employment Qualified Under the ADA: The New Legal Battleground After the ADA Amendments Act position that such individual holds or desires.”7 The EEOC’s regulatory interpretation of the term “qualified” divides this inquiry into two steps. First, to be qualified, an individual must “satisf[y] the requisite skill, experience, education and other job-related requirements of the employment position such individual holds or desires.”8 As explained by the EEOC, the first step requires an examination of the individual’s “credentials.”9 The second question is whether the individual “with or without reasonable accommodation, can perform the essential functions of such position.”10

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The ADA and its implementing regulations also provide instruction on how to determine whether a job function is essential, which is critical to understanding the definition of “qualified.” The statute provides that “consideration shall be given to the employer’s judgment as to which functions of a job are essential, and if an employer has prepared a written description before advertising or interviewing applicants for the job, this description shall be considered evidence of the essential functions of the job.”12 Additional EEOC guidance defines “essential functions” as “the fundamental job duties of the employment position the individual with a disability holds or desires” which do “not include the marginal functions of the position.”13 EEOC regulations also explain that a job function may be essential because the position exists to perform the function, there are a limited number of employees available who can perform the function, and/or because the function is highly specialized so the individual is hired for his or her expertise or ability to perform the function.14 Finally, while emphasizing that this list is not exhaustive, the EEOC regulations list relevant factors to consider when determining whether a particular function is

essential.15 The factors are as follows:

 The employer’s judgment as to which functions are essential;

 Written job descriptions prepared before advertising or interviewing applicants for the job;

 The amount of time spent on the job performing the function;

 The consequences of not requiring the incumbent to perform the function;

 The terms of a collective bargaining agreement;

 The work experience of past incumbents in the job; and/or  The current work experience of incumbents in similar jobs.

A comparison of the EEOC’s factors to the statutory text reveals that two of these factors overlap (employer judgment and job descriptions), while the remaining five are factors added by the EEOC. As discussed in this Legal Brief, courts regularly consider each of these factors when determining whether a particular function is essential.

Brief No. 22 May 2014 Qualified Under the ADA: The New Legal Battleground After the ADA Amendments Act EEOC guidance also clarifies that the relevant time period for determining an individual’s qualifications is the time of the employment decision at issue, and should be based on the individual’s capabilities, not on speculation that the employee may become unable to work in the future.17 Judicial Interpretation: “Qualified” Analysis

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Qualified Under the ADA: The New Legal While the EEOC regulations spell out a two-step process to determine whether an individual is qualified under the ADA, in practice, courts rarely spend much time analyzing the first step, whether the individual “satisfies the requisite skill, experience, education and other job-related requirements of the employment position such individual holds or desires.”18 In fact, some cases skip this assessment completely.

Courts that do engage in this analysis, however, have considered the individual’s education and prior experience in the position, among other factors. In Wirey v.

Richland Community College, for example, an employee with chronic fatigue syndrome worked for her employer for fifteen years, spending the last five in her final position as Director and Registrar.19 Recognizing the employee’s employment tenure, the court easily found that she had the skills and experience for the position under step one of the qualified analysis. Likewise, in Torres v. House of Representatives of the Commonwealth of Puerto Rico, the court found that the employee met the first prong of the qualified test in light of her Master’s degree in social work, her license in social work, her history of meeting performance expectations, and specific initiatives that she led in the past.20 Although courts typically segregate the two factors in their analysis of “qualified,” one recent case in the Sixth Circuit used the fact that the employee had the skills, experience and education required for the position (prong one) to support its conclusion that he could perform the essential functions of the job with or without accommodations (prong two). In Keith v. County of Oakland, the court considered whether a deaf individual was qualified to work as a lifeguard, specifically questioning whether he could effectively communicate.21 In determining that the lifeguard was able to communicate effectively due to his deafness, in addition to other considerations, the Sixth Circuit emphasized that “by passing [the] County’s lifeguard training program and earning his lifeguard certification,” the lifeguard “demonstrated his ability” to perform certain essential functions of the lifeguarding position.22 Step 2: Perform Essential Functions With or Without a Reasonable Accommodation The vast majority of cases regarding “qualified” focus on whether the individual can perform the essential functions of the position with or without a reasonable accommodation. This, too, can be a two-step process, providing litigants two distinct arguments.23 Parties may dispute which functions are essential functions, and whether the individual can perform the essential functions with or without a reasonable Brief No. 22 May 2014 Qualified Under the ADA: The New Legal Battleground After the ADA Amendments Act accommodation. For instance, the Sixth Circuit in Demyanovich v. Cadon Plating & Coatings considered both issues. It first held that lifting was not necessarily an essential function of a line operator job, as the employee’s job description identified several essential duties, but did not include a lifting requirement. Next, it questioned whether the employee could perform the essential functions at the time of his termination, and found a genuine issue of fact. At the time of the employee’s deposition, it was clear that he was no longer capable of several physically exerting Battleground After the ADA Amendments Act activities; however, the court was presented with no evidence that the employee was unable to perform the job functions at the time of his termination.24 Qualified Under the ADA: The New Legal On the other hand, a review of recent case law suggests that the majority of summary judgment cases focus on which functions are essential, as opposed to cases about whether or not the plaintiff can perform the particular function. One possible reason for this is that when a court finds a genuine issue of material fact regarding which functions are essential, it may not need to proceed to the question of whether or not the individual can perform the function. In EEOC v. Heartland Automotive Services, a Jiffy Lube franchise failed to hire a deaf applicant for a lube technician position.25 Because the parties provided conflicting evidence about the essential functions of a lube technician position, specifically, whether using a call-and-response system was essential, and how long technicians were required to stand, the court did not consider step two. The court explained that without a clear understanding of what the essential functions were for the position, it would be “impossible... to determine whether” the applicant was able to perform them.26 Another possible reason that a court focuses on what functions are essential is that it is undisputed that an applicant or employee cannot do a particular task, requiring the courts to determine whether that task is actually essential.

While plaintiffs typically have the burden of establishing that they are qualified as part of their prima face case, if defendants challenge their assertions about which functions are essential, courts generally find employers have the burden of showing that a particular function is essential.27The rationale behind this is that much of the information which determines which functions are essential lies “uniquely with the employer.”28 When adjudicating disputes about whether a particular task is essential, courts consistently rely on the EEOC’s factors, outlined above. While in certain cases, one or two factors prove to be determinative, courts frequently consider a mix of all of the factors in reaching a conclusion. As an example, in Bambrick v. Sam’s West, Inc., the issue was whether lifting 50 pounds was an essential function of the Photo Lab manager’s position.29 The defendant argued that the lifting requirement was essential, emphasizing the employee’s job description and the employer’s judgment. However, pointing to the absence of adverse consequences for failing to perform the function, the absence of a collective bargaining agreement, and the work experience of other employees, the court concluded that the lifting was not an essential function of this Brief No. 22 May 2014 Qualified Under the ADA: The New Legal Battleground After the ADA Amendments Act position. As discussed further in the job description section below, the court also discredited much of the job description in light of the fact that it was formulated years after the manager had started working with no real change in her job duties. This type of balancing approach is employed regularly by courts in deciding whether a function is essential or marginal.

Deciding Essential Functions: Factor-Employer Judgment

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In Henschel v. Clare County Road Commission, the court considered whether hauling equipment to a job site was an essential function of an excavator operator position.32 Although the employer considered hauling to be an essential function, the court explained that employer judgment “carries weight” but is “only one factor to be considered.”33 Despite the employer’s judgment, the employee was able to demonstrate a genuine issue of material fact as to whether hauling equipment was an essential function based on the other factors articulated by the EEOC, including the employee’s job description (discussed below), that the excavator stayed at the job site 90% of the time, that there minimal consequences to the employer’s operations if the excavator did not haul equipment, and experiences of past incumbents.

An interesting case out of Louisiana demonstrates how an employee can convince a court about the true essential functions of a position, despite an employer’s judgment and job descriptions. In Lee v. Harrah’s New Orleans, Harrah’s argued that in its judgment, the position of seated box person required an employee to be able to bend, reach, kneel, twist and grip.34 It asserted that the plaintiff, who had a history of severe back pain and had been diagnosed with fibromyalgia, was unqualified because she would be unable to perform these tasks without assistance from other personnel.

However, the court rejected the employer’s argument, in light of the employee’s own evidence that she actually had worked in the box person position for almost a year without needing additional personnel to perform the tasks.

Deciding Essential Functions: Factor-Job Descriptions Job descriptions are frequently used by employees and employers to support arguments about the importance of a particular function. Recent case law provides important lessons for all litigants about the relevance of job descriptions.

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