Three pitfalls to avoid when setting essential job functions and determining ADA accommodations

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A few months ago, I was waxing poetic about plutonium, how to establish essential job functions, and quality-testing diet scrapple. What got into me?

Now, I’ve got a cautionary tale, in the form of a recent federal court opinion, to help you good folks navigate away from some of the Americans with Disabilities Act traps. Lest you like litigation and lawyer bills.

Woo hoo!

The case is called Slayton v. Sneaker Villa and you can find the court’s opinion here.

Here are the important facts:

  • Ms. Slayton was a recruiter who took leave following a car accident.
  • After two months, she asked to work from home for four more weeks, or until her doctor released her to return to work with no restrictions.
  • Ms. Slayton’s request didn’t go over well at Sneaker Villa because the company was in a “critical time” and needed a recruiter out and about to, you know, recruit.
  • So, Ms. Slayton offered another solution; that is, coming to the office part-time until she completed physical therapy.
  • What happened next was unclear, except the parties agree that Ms. Slayton lost her job shortly thereafter.

Why didn’t the company get summary judgment on the plaintiff’s ADA claims?

So glad you asked, let’s turn to Judge Mitchell Goldberg from the Eastern District of PA for some answers. How about a little sum-sumpin on an employer mandating physical presence at work as an essential job function:

Consideration must be given to Defendant’s judgment that physical presence in the office was an essential function…A written job description “shall be considered evidence” of a job’s essential functions. Here, the written description for the Corporate Recruiter position does not speak directly to physical presence in the office…

Plaintiff maintains that she could have performed the true essential functions of her job at home, so long as she had access to a telephone and the Internet.

Because I must view the evidence in the light most favorable to Plaintiff, I conclude that a genuine dispute of material fact exists as to whether physical presence in the office was an essential job function.

And what about the plaintiff’s ability to travel? I mean, the defendant needed her to go to lots of job fairs and be the face of the company’s recruiting efforts. That may be a job requirement. But, essential? What do you say, Judge?

Defendant highlights that Plaintiff admitted during her deposition that she was advised during her interview process that the company was expanding, and that the position required travel both inside and outside the Philadelphia area for job fairs and recruitment initiatives.

Although the written job description of the Corporate Recruiter position does not list the ability to travel as one of the “Principle [sic] Duties and Responsibilities,” the “[a]bility to travel in all markets serviced by [Defendant]” is listed under the “Qualification/Skills & Knowledge Requirements” section of the position summary. 

Importantly, courts have recognized that a “requirement” of a given position may be distinguished from the “essential function(s)” of that position for purposes of assessing the second element of a plaintiff’s prima facie case.

Plaintiff persuasively argues that despite her requests to do so, she never actually traveled to any job fairs during her time working for Defendant.

O for 2 so far for the employer. How about engaging in a good faith interactive dialogue to discuss reasonable accommodations with the plaintiff? Did the company get that right?

While providing Plaintiff with a two-month leave of absence “no questions asked” could certainly be viewed as an accommodation, when viewed in the light most favorable to Plaintiff, a reasonable fact finder could also conclude that Denise Lee did not necessarily engage in the interactive process with Plaintiff during the pair’s March 28 and April 1, 2013 email exchange (which arguably constituted separate and distinct requests for accommodation).

On this point, Lee’s testimony revealed the following:

Q: Had you decided on Saturday, March 30th, that most likely you were going to fire [Plaintiff]?

A: I don’t know.

Q: Is that possible?

A: Yes.

Oof!

Employer takeaways.

  1. The lowest hanging fruit here is the ADA interactive dialogue. FFS, it can’t be in good faith if your mind is made up to fire the employee before the dialogue ends.
  2. This case highlights an important distinction between job requirements and essential job functions. So, go on and grab a job description. Make sure that all of the essential job functions are listed in the “essential job function” section, rather than the “requirements” section.
  3. You’ll find a number of cases on attendance at work and telecommuting. They are very fact specific. An employer’s judgment on the need for face time will go a long way, but not necessarily get you across the finish line. To get there, you need to practice what you preach. Be consistent and make sure that jobs requiring regular attendance elicit regular attendance. Then, if you get sued, you’ll have that. And, clutch your pearls too.
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