A key aspect of the Americans with Disabilities Act involves the concept of “essential job functions,” or for brevity in this article, “EJFs”. These comprise the core elements of any job, the primary reason the job exists. In theory, employers can insist that a disabled individual be able to perform the EJFs of their position, either with, or without, reasonable accommodations. Because the ADA does not require employers to excuse a disabled individual from performing EJFs, lawsuits can be won, or lost, on this singular issue: Just what are the EJFs of the position(s) involved in a case? This issue was frequently resolved in favor of employers who took advantage of guidance issued by the EEOC when the ADA first became law. That guidance provided that a written job description defining the EJFs of a position, are presumed to accurately describe the functions that a disabled individual must be able to perform. This presumption is of course subject to rebuttal if the job description does not accurately reflect the key functions of the job. However, whereas in the past written job descriptions listing EJFs often went unchallenged in court, there is a developing trend for savvy plaintiff lawyers and courts to scrutinize employer job descriptions in much greater detail vis-à-vis EJFs. Below are two recent cases that illustrate this trend of challenging written job descriptions, unfortunately, with unfavorable outcomes for the defendant employers:

In one case, Amazon defended an ADA lawsuit brought by a warehouse worker who sought to be excused from standing his entire shift, due to a knee injury. The worker sought as an accommodation to be allowed to take periodic sitting breaks throughout his shift. Amazon accommodated this request on a temporary basis. However, when its peak busy season arrived the company asserted the EJF in its written job description, requiring that warehouse workers be able to stand, lift up to 50 pounds, etc. Amazon advised the employee that if he could not perform these functions his entire shift he would need to be placed on medical leave. In the lawsuit that followed, Amazon’s motion to dismiss the employee’s ADA claim was denied by a federal district court in California. There, the judge parsed through the company’s written job description to acknowledge that while standing was required of the job, he questioned whether standing throughout an entire shift was a necessary EJF. Presumably, at trial a jury may determine whether the plaintiff could have been accommodated with periodic rest breaks while sitting, or potentially even permitted to sometimes work while seated unless it presented a safety risk.

Another ADA lawsuit involved an in-house lawyer employed by Allstate Insurance Company. The lawyer had been employed by Allstate for years, trying cases in many jurisdictions. But after suffering several medical maladies and surgery that had him on medical leave for an extended period, his doctor returned him to work with a restriction that he no longer try any cases. Relying on its written job description that specified doing trials was an EJF of his position as a company attorney, Allstate refused to reinstate him to his former position.  Notably, Allstate wisely explored and identified other available positions within the company that did not require doing trials, but the attorney turned them down and instead demanded to remain in his same position and sued under the ADA when Allstate refused.

Allstate likely viewed this as an open-and-shut case.  After all, trying cases in court would seem to be a quintessential function of an attorney position, particularly where this particular attorney had done so for many years before his health deteriorated. But notwithstanding the presumptive EJFs clearly stated in the written job description, a federal court in New York considered facts outside the job description to deny Allstate’s motion to dismiss. Among the facts the court considered, the plaintiff claimed he could still litigate non-jury trials, do mediations, or serve as “second chair” (not lead) trial counsel. The case ended up settling before a jury would likely have been asked to determine whether trying every sort of case, without limitation, truly amounted to an EJF of the attorney’s position with Allstate.

Employers should resist the temptation to disregard these examples as coastal jurisprudence from CA and NY, that could never happen in the Midwest. Cases just like them are occurring with greater frequency, everywhere. So, what lessons can employer’s take from this trend in ADA case law? Here are a few:

• As always, written job descriptions should be reviewed periodically to ensure they accurately describe the functions of each position, especially EJFs.
• Remember an employer’s first obligation in addressing a disabled applicant or employee’s inability to perform an EJF, is to explore and identify reasonable accommodations, if any, that would enable them to adequately perform those functions.
• Before discharging, refusing to reinstate, or otherwise concluding an individual cannot perform the EJFs stated in a written job description, take a fresh look at the job description to scrutinize it the way plaintiff lawyers, and more recently courts, are prone to do in litigation. For example, if the job description lists standing as an EJF, is standing really required for an entire shift? Would occasional rest while seated be reasonable?
• More broadly, is a listed EJF one that employees must do for an entire shift, or at least be able to do at unpredictable times such that an inability to perform that function even occasionally could compromise the job?

Bottom line: Having a well written job description listing EJFs is still an employer’s best defense to ADA claims involving accommodation requests to modify or eliminate those functions. Having said this, employers are well advised to recognize an emerging trend to scrutinize and parse through written job descriptions rather than just accepting them at face value.  Here’s a practice tip: pretend you are an employee or plaintiff attorney who stands to recover thousands, tens or hundreds of thousands of dollars by punching holes in your written job description’s definition of essential job functions. You may find that you can be very, very creative given these hypothetical stakes😉.

Questions? Contact attorney James Sherman in our Minnesota office by email or at 952-746-1700