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Sept. 17 --The courts are focusing on employers' job descriptions and performance evaluations to determine whether a job function is essential and an employee is “qualified” under the Americans with Disabilities Act, David Fram told attendees at a Sept. 16 workshop sponsored by the National Employment Law Institute.
Fram, director of ADA and equal employment opportunity services for NELI, said performance evaluations bear on whether an individual is qualified, while job descriptions represent whether a function is essential or marginal.
Under the ADA, an individual must be able to perform the essential functions of the job with or without accommodation. The law also protects a person with a disability who is “qualified.”
“The most important piece of evidence as to whether the employee is or is not qualified is his or her performance, which can be reflected in a performance evaluation,” Fram said.
Some courts may rule in favor of the employee if he or she is performing a job satisfactorily after the onset of a disability. “It's very helpful to the employee to prove that he or she is qualified for the job,” Fram said.
He cited as an example Colón-Fontánez v. Municipality of San Juan, 660 F.3d 17, 25 AD Cases 423, 2011 BL 262540(1st Cir. 2011) . The employee in that case was getting good to superior ratings in her performance evaluations. The court said that is “strong evidence that the person is qualified and had the skills to perform the job,” Fram added.
The court in EEOC v. Chevron Phillips Chemical Co., 570 F.3d 606, 21 AD Cases 1729 (5th Cir. 2009) also noted that the employee's “satisfactory job reviews” were evidence that she was qualified, Fram said.
If an employee had been getting bad reviews, however, as did the worker in Jones v. Walgreen Co., 679 F.3d 9, 26 AD Cases 261 (1st Cir. 2012) , it is evidence that the employee is not qualified, Fram said.
The courts are also reviewing job descriptions as primary evidence in ADA cases, Fram said. During the past year, a growing number of “courts have said if the job description identifies the functions as being essential,” it may support an employer's claim, he said. “The courts are looking long and hard at these job descriptions and are saying that if the essential function is in the job description, then that is going to be helpful evidence,” Fram noted.
For example, in an unpublished opinion, Galloway v. Aletheia House, 509 Fed. Appx. 912, 2013 BL 41809 (11th Cir. 2013), Fram said the court, after reviewing the job description, determined that driving was essential for the case manager's position at issue. Therefore, the applicant, who was blind, was not qualified for the position.
Fram also cited Knutson v. Schwan's Home Service Inc., 27 AD Cases 1185 (8th Cir. 2013) , in which the court based its ruling on the fact that the essential functions were listed in the employer's job description. The court said, “We looked at the job description, which discusses managers having to sometimes make frozen food deliveries in big trucks that require the driver to have certification by the Department of Transportation,” Fram noted.
In White v. Standard Insurance Co., 28 AD Cases 381 (6th Cir. 2013), the court in an unpublished opinion ruled in favor of an employer whose job description for a customer service agent position clearly noted that the job was full-time, Fram said. “The job description was helpful evidence” in the court's determination that the plaintiff was not qualified because she was only able to work a part-time schedule.
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