Use Job Descriptions to Ward Off ADA Discrimination Claims

Under the Americans with Disabilities Act (ADA) covered employers are obligated to make “reasonable” accommodations to help employees with disabilities perform their jobs. But if such employees can’t perform “essential” job functions even with accommodations, employers have more options with respect to disabled employees, including termination.

The definitions of “reasonable” and “essential” have always, to some degree, involved some subjective assessment. However, mountains of litigation since the ADA’s 1990 enactment have provided some clarity.

In a recent case, an employer learned the hard way what it should have done to beat a discrimination claim. Although the employer had included a particular task (which involved a little walking) in its job description, it wasn’t made clear why that task was essential to the job’s role. The upshot was that an employee who was no longer able to perform that task was awarded damages from the employer by a federal court after the employee pursued an ADA violation allegation.

Better Job Descriptions

So, how do you write a job description to avoid legal trouble?

Details are important to ensure ADA compliance. Assuming it’s not a newly created position, and the people already doing that job are performing well, a good way to start writing the description is to observe and interview those currently in that role. You can also create a questionnaire and ask them to complete it.

A high-level starting point, which might also prove useful, is the Occupational Outlook Handbook (https://www.bls.gov/ooh/), a website produced by the Department of Labor’s Bureau of Labor Statistics.

The job description should include not just the tasks involved, but also required knowledge, skills, credentials, licenses and physical capabilities (for example, the ability to walk certain distances, stand for specified periods of time, lift objects of a certain weight). Similarly, it should describe the environment(s) in which the job must be performed, such as the physical setting.

Essential Functions

Next, the essential job functions need to be laid out. This calls for accuracy, precision and detail. In addition to describing the function or task itself, you’ll need to state the estimated frequency and duration of the task. For example, there’s a big difference between lifting a 25-pound box once a day and once every five minutes.

It’s also generally a good idea to add a disclaimer noting that the job might include some tasks and functions not listed in the description. These could be either in the present or future, as circumstances warrant. And for good measure, it’s recommended that you have the employee sign a copy of the description acknowledging that he or she understands the requirements of the job.

The DOL’s Office of Disability Employment Policy offers a resource called the “Job Accommodation Network” (JAN) that has a detailed report on ADA-compliant job descriptions. It offers the following guidance on identifying essential elements of the job. A job function might be considered “essential” if:

• The position exists to perform that function. For example, a person is hired to proofread documents. The ability to proofread accurately is essential, because that’s the reason this position exists.
• There are a limited number of other employees available to perform the task or among whom the particular task can be distributed. For example, it may be an essential function of the job of file clerk for him or her to answer the telephone if there are only three employees in a hectic office and each employee has to perform many different tasks.
• A function of the job is highly specialized, and the person in the position is hired for special expertise or ability to perform it. For instance, a company wishes to expand its business with Japan. For a new sales position, in addition to sales experience, it requires a person who can communicate fluently in Japanese.

Standards for Proof

Suppose you are challenged to prove that a given job function is “essential.” JAN offers the following categories of evidence to help you make the case if challenged:

• Your judgment. Example: You hire typists who can accurately type 75 words per minute. You need not show that such speed and accuracy are “essential.” And, if a person with a disability is disqualified by such a standard, you should be prepared to show that you do, in fact, require employees to perform at this level.
• The amount of time spent performing the function. Case in point: An employee spends a majority of work time using one machine. That in itself is evidence that operating this machine is an essential function.
• The consequences of not requiring a person in this job to perform a function. Example: An airline pilot spends only a few minutes of a flight landing a plane. But landing the plane is an essential function because of the grave consequences if the pilot could not perform this function.

There is probably nothing you can do to guarantee you will prevail in an ADA case. But applying the steps outlined above to your job requirements and job descriptions may tilt the scale in your favor. As with any consequential employee relations issue, the advice of a qualified attorney is advisable.