A friendly reminder that, just because your job description might say what an employee is supposed to do, doesn’t mean that’s what your employee actually does. And, in an Americans with Disabilities Act case, here’s why that matters…
At 7:00 am (yawn) on Tuesday, June 30, I’m presenting “My Employees Can Miss HOW MUCH Work?!? Managing Leave Challenges Under the FMLA and ADA” at the SHRM 2015 Annual Conference in Law Vegas. If you plan to attend SHRM15, please stop by. And, if you want to otherwise meet up while you’re out there, e-mail me.
In Shell v. Smith, the plaintiff worked for a transit system for 12 years as a Mechanic’s Helper. The job description for the position stated that the Mechanic’s Helper may occasionally drive buses. However, Shell had hearing and vision impairments, which precluded him from obtaining a CDL. In his 12 years there, he never had to get a CDL or drive a bus. Well, that was until the defendant appointed a new General Manager, who informed Shell that he either had to get a CDL, per the job description, or he would lose his job.
And, as these blog posts go, Shell lost his job and sued under the ADA (failure to accommodate).
Job descriptions are not the be-all-and-end-all.
The district court found in favor of the employer. On appeal, the Seventh Circuit reversed, concluding that driving a bus is not an essential function of Shell’s job:
The City could only require Shell to have a CDL if one was necessary to perform an essential function of the Mechanic’s Helper position. Driving a bus is the only function of the Mechanic’s Helper position that requires a CDL. So if driving a bus is not one of the fundamental job duties of the position, the City could not use Shell’s inability to obtain a CDL as the basis for his termination….Shell urges that the job description is just one factor to consider….The City’s actual practices suggest that the need for a day shift Mechanic’s Helper to drive a bus is not fundamental to the job.
Can’t an employer change its mind about a job description? Yes, but…
But, what about the argument that, regardless of what may have transpired in the past, the City had the right to change the job requirements? That’s a jury call.
The City argues that just because it restructured the job in the past and allowed Shell to perform janitorial, but not all mechanical, duties does not require it to continue to go beyond the ADA’s requirements….This argument assumes that the duty at issue is an essential function of the job, and that the City previously accommodated Shell beyond what the ADA demands when it did not require him to perform the duty. If these assumptions are true, the City is correct. And while a jury could ultimately agree with the City, genuine issues of material fact preclude making these prerequisite assumptions at the summary judgment stage of this case….Whether Shell was asked to perform less than all of the written duties is not indicative of whether the City considered the duties he was not expected to perform to be essential.
So use those post as
toilet paper a reminder to make sure that your job descriptions — especially the essential job functions — line up with the actual duties that the employees in those positions regularly perform.