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For example, in an unpublished opinion, Galloway v. Aletheia House, 509 Fed.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.
To contact the reporter on this story: Lydell C. Bridgeford in Washington at email@example.com
To contact the editor responsible for this story: Heather Bodell at firstname.lastname@example.org
All Bloomberg BNA treatises are available on standing order, which ensures you will always receive the most current edition of the book or supplement of the title you have ordered from Bloomberg BNA’s book division. As soon as a new supplement or edition is published (usually annually) for a title you’ve previously purchased and requested to be placed on standing order, we’ll ship it to you to review for 30 days without any obligation. During this period, you can either (a) honor the invoice and receive a 5% discount (in addition to any other discounts you may qualify for) off the then-current price of the update, plus shipping and handling or (b) return the book(s), in which case, your invoice will be cancelled upon receipt of the book(s). Call us for a prepaid UPS label for your return. It’s as simple and easy as that. Most importantly, standing orders mean you will never have to worry about the timeliness of the information you’re relying on. And, you may discontinue standing orders at any time by contacting us at 1.800.960.1220 or by sending an email to email@example.com.
Put me on standing order at a 5% discount off list price of all future updates, in addition to any other discounts I may quality for. (Returnable within 30 days.)
Notify me when updates are available (No standing order will be created).
This Bloomberg BNA report is available on standing order, which ensures you will all receive the latest edition. This report is updated annually and we will send you the latest edition once it has been published. By signing up for standing order you will never have to worry about the timeliness of the information you need. And, you may discontinue standing orders at any time by contacting us at 1.800.372.1033, option 5, or by sending us an email to firstname.lastname@example.org.
Put me on standing order
Notify me when new releases are available (no standing order will be created)