The ADA defines the qualified individuals who are protected from discrimination as those who "with or without reasonable accommodation, can perform the essential functions of the employment position that such individual holds or desires. For the purposes of this sub chapter, consideration shall be given to the employer’s judgment as to what 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." 42 U.S.C. section 12111(8).
The EEOC's regulations provide some guidance on what constitutes an essential function: "(1) In general. The term essential functions means the fundamental job duties of the employment position the individual with a disability holds or desires. The term “essential functions” does not include the marginal functions of the position. (2) A job function may be considered essential for any of several reasons, including but not limited to the following: (i) The function may be essential because the reason the position exists is to perform that function; (ii) The function may be essential because of the limited number of employees available among whom the performance of that job function can be distributed; and/or (iii) The function may be highly specialized so that the incumbent in the position is hired for his or her expertise or ability to perform the particular function. (3) Evidence of whether a particular function is essential includes, but is not limited to: (i) The employer's judgment as to which functions are essential; (ii) Written job descriptions prepared before advertising or interviewing applicants for the job; (iii) The amount of time spent on the job performing the function; (iv) The consequences of not requiring the incumbent to perform the function; (v) The terms of a collective bargaining agreement; (vi) The work experience of past incumbents in the job; and/or (vii) The current work experience of incumbents in similar jobs. 29 CFR section 1630.2(n).
The FEHA bans discrimination on the basis of mental or physical disability, but "does not prohibit an employer from refusing to hire or discharging an employee with a physical or mental disability, or subject an employer to any legal liability resulting from the refusal to employ or the discharge of an employee with a physical or mental disability, where the employee, because of his or her physical or mental disability, is unable to perform his or her essential duties even with reasonable accommodations, or cannot perform those duties in a manner that would not endanger his or her health or safety or the health or safety of others even with reasonable accommodations." Cal. Gov. Code section 12940, subd. (a)(1). The regulations promulgated under the FEHA by the Fair Employment and Housing Commission repeat the EEOC's definition at Cal. Code Regs. tit. ii, section 7293.8(g).
In the case from Minnesota, the plaintiff, the defendant bank's compliance officer, suffered from multiple sclerosis. Because of her condition, she required flexible hours that would allow her to work outside normal bank hours from time to time, but she was able to work a 40-hour work week. The bank discharged her immediately after it received the results of an FDIC examination that found fewer significant violations but more violations overall than in the previous examination. As one of its defenses to her lawsuit under the ADA, the bank claimed that she was unable to perform the essential functions of her job because she could not be present during all normal banking hours. The plaintiff claimed that she could perform some of her functions outside normal banking hours, pointing to the provision of a laptop and the fact that she had been allowed to work at home and outside normal banking hours. In denying summary judgment, the district court specifically noted the lack of any evidence that her essential job functions were established before she began discussions about reasonable accommodations with the bank. See Wandersee v. Farmers State Bank of Hartland, Case No. 10-4159 (D. Minn May 9, 2012).
Although an employer's written job description prepared before a dispute arises will not always be accepted as a proper assessment of essential functions, it will be persuasive, and may tip the balance in the employer's favor. Without such a prior written description of essential functions, the employer will certainly be at the mercy of a jury's after the fact assessment.
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