To prove disability discrimination under the Americans with Disabilities Act (ADA), a plaintiff, at a minimum, must prove that:
After the jump, I have a recent federal court decision from Michigan which addresses the second prong above; specifically, whether and when working a minimum number of hours a week is an essential job function, such that if a disabled employee can't work those hours, she can be fired -- legally.
- she is disabled;
- she is otherwise qualified to perform the job requirements, with or without reasonable accommodation; and
- she was discharged (or otherwise suffered an adverse employment action) solely on account of her disability
Working overtime may an essential job function.
Under the ADA, a "qualified individual with a disability" is an individual with a disability who, with or without reasonable accommodation, can perform the essential functions of the employment position that the individual holds or desires. Therefore, if an employee cannot perform the essential functions of her job, even with a reasonable accommodation, she is not covered under the ADA.
What are the essential functions of a job? Well, they can vary based on the position. But, generally, they consist of those functions which the individual who holds the position must be able to perform and that could not be removed without fundamentally altering the position. When considering what job functions are essential, courts considers many factors, including the amount of time spent performing the job function.
In EEOC v. AT&T Mobility Servs. LLC, the court determined that an AT&T Store Manager with multiple sclerosis could not perform the essential functions of her job because she could not work "evenings, weekends, holidays and overtime," which the court felt were all essential functions of the position. Without spending that time at work, the Store Manager could not properly perform her job, or run the store
The court further noted that AT&T did participate, in good faith, in an interactive dialogue with the plaintiff to attempt to accommodate her disability. AT&T offered to allow the plaintiff to use a wheelchair. The plaintiff's doctor approved the use of the wheelchair but would not remove the 40-hour restriction. AT&T also have the plaintiff 30 days in which to find another open position within the company. However, the plaintiff was unsuccessful.
Tips for employers:
- Create thoughtful written job descriptions for each position. This will help to clarify what is expected of employees in those positions. However, remember that written job descriptions are not necessarily dispositive as to the essential functions of the position. Persuasive? Yes. But, the actual amount of time spent performing the work is more important.
- Consider the consequences of not requiring the employee to perform all job functions in the written job description. Let's say that ABC Company's job description for Eddie Employee requires him to perform tasks A, B, C. If Eddie only performs A and B, and he is still able to perform his job, then C may not be an "essential."
- Don't forget about state and local laws. Many of these may be more employee-friendly than the ADA. It is possible to comply with federal disability-discrimination law and run afoul of similar state and local laws.