Helpful Guidance In Determining A Position's Essential Functions Under The ADA
JD Supra
A recent decision from the U.S. District Court for the Northern District of Illinois sheds light on how to determine what job tasks are properly considered essential functions of a position under the Americans with Disabilities Act (ADA). A plaintiff alleging that her employer denied her a reasonable accommodation for her disability must prove that she is a qualified individual, which requires showing that she can perform all the essential functions of the job with or without an accommodation. In the recent decision, the court dismissed a police officer’s failure to accommodate claim because the police officer could not perform certain functions deemed essential to her position. Specifically, she could not ambulate independently or handle a firearm. The police officer claimed these duties were not essential because she was on limited duty indefinitely and spent most of her days working at a desk.
The court delved into federal regulations and case law to determine whether a particular job duty should be deemed essential. Written job descriptions and other indications of an employer’s judgment about a position’s essential functions provide convincing – but not controlling – evidence. Courts will also consider other evidence regarding whether a task is essential, including the amount of time the employee typically spends on the function, the consequence of not requiring the employee to perform the function, terms of any collective bargaining agreement, and the work experience of prior employees or other current employees in that same position. Courts may also make additional inquiries, more likely determining that a function is essential if any of the following are true: (i) the position exists to perform the function, (ii) there are a limited number of employees among whom the function can be distributed; (iii) the function is highly specialized and/or the employee was employed specifically for her expertise or ability to perform that function.
The court also provided helpful analysis in determining essential functions where an employee is responsible for multiple tasks on a rotating basis. A court will likely find that each of the multiple duties are essential functions, even where the employee completes some of the duties only rarely, if the employer can justify why it requires each employee in that position to be able to complete all duties. An employer may satisfy this burden by showing, for example, that the workforce is too small to justify hiring specialists for each separate task or that there are unexpected surges in demand for a particular task.
The court found that even here where the plaintiff did not generally handle a firearm in her limited duty position, the police force could require all officers to be able to handle a firearm regardless of their day-to-day duties because being able to arrest someone is a central purpose of the police force.
Employers should analyze each position in the workforce to understand the position’s essential duties before an issue arises. Being able to differentiate between essential functions and marginal functions will assist an employer in determining its obligations when an employee requests a reasonable accommodation. While an employer may be required to excuse an employee from completing marginal functions, the ADA does not require it to excuse an employee from performing essential functions. However, it may need to provide accommodations to enable the employee to perform those essential functions.
Read The Statute: Tenth Circuit Holds Claim For Failure To Accommodate Requires An Adverse Employment Action
The National Law Review
In Exby-Stolley v. Board of County Commissioners, No. 16-1412, 2018 WL 4926197 (10th Cir. Oct. 11, 2018), the Tenth Circuit Court of Appeals held that for an individual to succeed on a failure to accommodate claim under the Americans with Disabilities Act (“ADA”), he or she must establish an adverse employment action, i.e., one that materially adversely affects the terms, conditions, or privileges of employment. See 42 U.S.C. §12112(a).
When reaching its decision, the Tenth Circuit relied on two principles: first, read the statutory language and second, do not rely on dictum.
Analyzing the ADA, the Court first reviewed the language in 42 U.S.C. § 12112(a), which states:
No covered entity shall [1] discriminate against a qualified individual on the basis of disability [2] in regard to job application procedures, the hiring, advancement, or discharge of employees, employee compensation, job training, and other terms, conditions, and privileges of employment.
The Court then noted that subsection (b) states the term “discriminate against a qualified individual on the basis of disability” includes “not making reasonable accommodations to the known physical or mental limitations of an otherwise qualified individual with a disability.” 42 U.S.C. § 12112(b)(5)(A).
Based on the plain meaning of the statute, the Tenth Circuit concluded that failure to make a reasonable accommodation was a type of discrimination which, to be actionable, must be “in regard to” an adverse employment action.
Rejecting the cases cited by the dissent, the majority opinion relied on another familiar principle: courts are not bound by dicta, which are “statements and comments in an opinion concerning some rule of law or legal proposition not necessarily involved nor essential to determination of the case at hand.”
TAKEAWAYS
To employers, the case is important in that, at least under federal law in the Tenth Circuit, for an employee to have an actionable failure-to-accommodate claim, he or she must prove the failure to accommodate resulted in an adverse employment action.
Lawsuit alleges ADA violations at Safeco Field
The Seattle Times
Seattle Mariners fans who use wheelchairs are forced to endure a “second-class” experience when they attend games at Safeco Field, according to a new lawsuit against the team and the public facilities district that owns the stadium.
A nonprofit disability-rights law firm filed the suit Monday, claiming conditions at the ballpark violate state and federal law, including the Americans with Disabilities Act. The firm represents four Washington residents who use wheelchairs and have attended games at Safeco Field this year. Each encountered issues with seating, food service or access to certain parts of the stadium, the suit alleges.
9 simple ways your workplace can be more inclusive of people with disabilities
Moneyish
To mark National Disability Employment Awareness Month, disability-rights activists and experts laid out simple measures any employer can take.