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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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The fact that a specific duty is omitted from a job description can also support an employee’s argument that a particular function is not essential. In EEOC v. Heartland Automotive Services, the fact that the duty of operating a “call and response system” Brief No. 22 May 2014 Qualified Under the ADA: The New Legal Battleground After the ADA Amendments Act was not included in the job description for a lube technician supported the applicant’s argument that it was not an essential function of his prospective position, leading the court to allow the plaintiff’s claim to proceed beyond summary judgment.35 Employers may have a particularly difficult time arguing that a particular function is essential if the function is omitted from the job description for the position in question,

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Qualified Under the ADA: The New Legal Road Commission, the court considered whether hauling equipment was an essential function of an excavator operator.36 The plaintiff had been in a motorcycle accident and used a prosthetic leg. In deciding not to return the employee to his position, the employer argued that the plaintiff would be unable to haul equipment to the job site, which it deemed an essential function. Arguing that hauling equipment was not essential, the employee asserted that his job description did not include the duty of hauling equipment, which was particularly relevant because hauling equipment was included in the job description for a different position, the truck/tractor driver position.

Although the employer argued that the plaintiff’s job description’s inclusion of “other duties assigned” included hauling, the court held that not every other duty under the “other duties assigned” category is an essential function, and to find otherwise would render the job description meaningless. See also Feldman v. Olin Corp., 692 F.3d 748 (7th Cir. 2012) (noting that the job description for the specific position in question did not mandate overtime, while other job descriptions did, in allowing the plaintiff’s claim to proceed).

Employees can also successfully challenge the accuracy of a job description by comparing it to their own experience working in the position. In Bambrick v. Sam’s West, Inc., the plaintiff had a lower back injury and had a lifting restriction of 30 pounds.37 She worked as a manager of the photo lab from 2001 to 2010, when she was told that due to her lifting restriction, she was offered a position with a significantly diminished compensation, and ultimately terminated. In defending this ADA case, her employer argued that a 50-pound lifting requirement is an essential function of the manager position, and produced a job description to support its claim. Noting that the job description was developed in 2007, many years after the manager had started working with no apparent changes to her job duties, the court stated that “a determination of whether physical qualifications are essential job functions should be based upon more than statements in a job description, and should reflect the actual functioning and circumstances of the particular enterprise involved, with focus on the position from which plaintiff was removed.” Accordingly, the plaintiff’s case was permitted to proceed. See also Lee v. Harrah’s New Orleans, 2013 WL 3899895 (E.D.

La. July 29, 2013) (rejecting Harrah’s argument that bending, reaching, kneeling, twisting and griping were essential functions in light of the employee’s actual experience on the job).

Likewise, in Rorrer v. City of Stow, the plaintiff worked as a firefighter for nine years Brief No. 22 May 2014 Qualified Under the ADA: The New Legal Battleground After the ADA Amendments Act until he became blind in his right eye.38 After receiving medical clearance to return, the plaintiff’s supervisor denied him the opportunity to resume his job, and ultimately terminated the plaintiff’s employment. The plaintiff had requested to be relieved of driving duties, due to his accident, and the employer cited a National Fire Protection Association (“NFPA”) guideline as a reason for the plaintiff’s termination. The NFPA guideline required firefighters to be able to operate “fire apparatus or other vehicles in an emergency mode with emergency lights and sirens.” The court held that there was

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Employers’ retention of multiple job descriptions for the same job can also support an employee’s argument that the job description is inaccurate, and thus, cannot be used to determine whether a function is essential. In Zimple v. Hancock Fabrics, Inc., the court considered whether lifting was an essential function of a fabric store manager position, but the employer produced three different job descriptions.39 For this, and other reasons, the court held that a genuine issue of material fact existed about the essential functions of the manager’s job.

Litigants relying on job descriptions should closely review the words used in the actual description. In Bisker v. GGS Information Services, Inc., the court held that the plaintiff was qualified, despite her need for telework, after determining that face-to-face interaction was not an essential function of the parts lister position.40 The employee’s job description indicated that the position required “occasional[] interact[ing] with engineers and technicians” and “frequent contact with employees” but did not specify whether the interactions and contact needed to be in-person. Reasoning that such interactions and contact could be done from home, the court found the employee to establish her initial burden of whether she was qualified under the ADA.

In addition to the tips learned from recent case law, employees and employers should remember that the ADA does not require an employer to develop or maintain job descriptions.41 However, if an employer uses written job descriptions, such descriptions should be reviewed regularly to be sure that they accurately reflect the actual functions of the current job. Further, if an employer intends to use a job description as evidence of essential functions, the job description must be prepared before advertising or interviewing for a job, as a job description prepared after an alleged discriminatory action will not be considered as evidence.

Deciding Essential Functions: Consequences of Removing Essential Function Another factor identified by the EEOC in determining whether a particular function is essential is the consequences of not performing the function. The typical analysis under this factor considers the severity of the harm caused by removing an essential Brief No. 22 May 2014 Qualified Under the ADA: The New Legal Battleground After the ADA Amendments Act function. One example of this can be found in an older case out of the Sixth Circuit, Brickers v. Cleveland Board of Education.42 In Brickers, the issue was whether lifting was an essential function of a school bus attendant who transported students with disabilities. While attendants may “seldom” be required to lift, the court found a genuine issue of material fact as to whether lifting to be an essential function in light of the consequences of not performing the function when necessary, given the severe consequences if the attendant was unable to lift students during an accident or fire.

Battleground After the ADA Amendments Act Qualified Under the ADA: The New Legal When assessing this factor, courts have also held that if the consequence of not performing a function would require an employer to hire another employee, the function is likely considered essential. In Moore v. Jackson County Board of Education, the court considered whether cooking and cleaning were essential functions of the position of a cafeteria manager position.43 Among the factors considered when holding that cooking and cleaning were essential functions of the position, the court emphasized that if the plaintiff had been permitted to return to work without performing her cooking and cleaning duties, the defendant would have been required to hire another person to perform those duties. Other than the manager, there were only two other employees to supply food for 200 students on a daily basis. Thus, cooking and cleaning were deemed essential functions for this job as a matter of law.

Deciding Essential Functions: Additional Factor-Legally Defined Job Requirement Courts have recognized additional factors, not specifically delineated by the EEOC, in their quest for determining whether a function is essential. One common reason for finding a task to be essential is the statutory, regulatory or administrative requirement behind it. For example, in Proctor v. Northern Lakes Community Mental Health Authority, the court found certain lifting requirements to be essential to the position of a resident care assistant and explained that individuals employed by this position must meet the State of Michigan’s physical exertion requirements.44 The court explained that if a function is required by state legislation, then those qualifications are essential functions by their very nature. Likewise in the Brickers v. Cleveland Board of Education case discussed above, in addition to the severe consequences of a school bus attendant not being able to lift the students, the court emphasized that state legislation required school bus attendants to have the “physical capability of appropriately lifting and managing” students with disabilities “when necessary.”45 Thus, the legally defined job requirements were essential by their very nature.

Of course, there could be a state law or regulation that conflicts with the ADA. If so, under federalism principles, the ADA would trump because it is a federal law.46 Interestingly, even if the qualification requirement in question came from a federal law or federal regulation, employers cannot shield themselves from ADA liability or successfully use it as a defense to an ADA claim if the requirement in question is applied too broadly. For example, in Samson v. Federal Express Corporation, the employee was offered a job as a vehicle technician, conditioned upon his passing a Department of Transportation (“DOT”) medical exam, which the Federal Motor Carrier Brief No. 22 May 2014 Qualified Under the ADA: The New Legal

Update onEmerging ADA Issues:

Disability Harassment, Retaliation and Constructive Discharge Battleground After the ADA Amendments Act Safety Regulations (“FMCSRs”) require for commercial motor vehicle drivers who transport property or passengers in interstate commerce.47 The court found that the FMCSRs requirement did not apply to the position in question, as the position required only test-driving that did not constitute transporting property or passengers in interstate commerce. Therefore, the court reversed summary judgment in favor of the employer, holding that the legal requirement of FMCSRs did not afford a defense to the employee’s disability discrimination claims.

Battleground After the ADA Amendments Act Qualified Under the ADA: The New Legal Deciding Essential Functions: Managerial Positions At times, managers become unable to do a job task typically performed by a nonmanagerial employee, requiring courts to determine what are the essential functions of managers. In the Moore v. Jackson County Board of Education case, discussed above, the cafeteria manager argued that her job was to perform managerial work, such as paperwork and operating the cash register, while the employer asserted that the position also included the non-managerial work such as cooking and cleaning.48 Although the position was managerial, the manager acknowledged that she assisted other cafeteria workers with cooking and cleaning when she had the time. That admission, coupled with the fact that the employee who replaced the manager performed certain cooking and cleaning duties and other factors, led the court to conclude that the manager’s managerial title did not lead to the conclusion that cooking and cleaning were not essential functions of her position.

Even if a manager infrequently performs a specific function performed by her employees, courts can still find the functions to be essential if the manager performs them on at least some occasions. In Gober v. Frankel Family Trust, a maintenance foreman who could no longer work more than eight hours per day was terminated for his inability to be “on call.”49 The foreman argued that the ability to be “on call” was not an essential function of his job because he held a supervisory position, and not the maintenance technician position, and that technicians were the only ones responsible for responding to the properties’ after-hours needs. The court disagreed, and held that foreman were also expected to report to properties after houses when necessary, rendering this an essential function. Likewise in Knutson v. Schwan’s Home Service, Inc., a general manager argued that driving was not an essential function of the managerial position.50 For a number of reasons, the court found otherwise. With respect to the managerial/employee distinction, the court explained that while driving or having the ability to drive was a rare need for a manager, it still, from time to time, was an essential job function for a manager to perform.

There have been multiple cases that assessed whether a restaurant manager’s essential job functions include performing the tasks of the wait staff that they manage.

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