If I hire you to shovel snow in hell, when hell eventually freezes over, you’d better shovel!

Remember that as I share with you a recent Tenth Circuit opinion dealing with essential job functions under the Americans with Disabilities Act.

Here are the undisputed facts:

  • The plaintiff-employee worked for the defendant-employer first as a shopping-cart attendant, then as a maintenance associate.
  • The job duties of a maintenance associate listed cleaning restrooms as an essential job function.
  • For several years, the plaintiff never cleaned any restrooms but received generally positive performance evaluations.
  • After another maintenance associate left, a store manager directed the plaintiff to clean the men’s restroom.
  • The plaintiff refused to clean the restroom, stating that she was afraid a man would come in and attack her.
  • The defendant placed the plaintiff on personal leave, pending job reassignment if a suitable position were to become
  • The plaintiff soon obtained other employment with another employer, and the defendant formally terminated her.

Then the plaintiff filed her ADA lawsuit.

So, let’s talk about essential job functions.

Among other things, an individual claiming disability discrimination must establish that she was qualified, with or without reasonable
accommodation, to perform the essential functions of her job.

Curiously, the plaintiff conceded that cleaning restrooms was an essential function of a maintenance associate. However,  the plaintiff argued that “she was a maintenance associate in name only and that her actual job was something different because for years she performed various tasks … that did not include cleaning the restrooms.”

Except, here’s the thing.

Employees don’t define what job functions are essential; employers do that. And even though an employer may not ask an employee to perform an essential job function for a long time — years maybe — that job function remains essential. That’s especially true when others in the same position perform that job function regularly.

The plaintiff was unable to point the Tenth Circuit to any case law to support her position that a job function is not essential if an employer doesn’t make the employee perform that task for a long time. Indeed, there is plenty of case law affirming that even rarely-performed job functions can still be essential. I’ve blogged about it before.

So the plaintiff loses. And, hopefully, the devil doesn’t read this blog.

A few additional takeaways for my readers:

  1. Make sure that you have job descriptions that accurately define what functions of the job are essential. A court is going to give your judgment, memorialized in a job description, a lot of weight. Bonus points if your employee signs the job description.
  2. You do not have to create a new position to accommodate an employee with a disability.
  3. You can walk back from overaccommodating an employee (e.g., years of light duty). Often, this crops up when the company hires a new supervisor who immediately cracks the whip. But, don’t forget to engage in an interactive dialogue. But, if all else fails, you can make the employee perform the essentials functions of the job for which he or she was hired to perform.
“Doing What’s Right – Not Just What’s Legal”
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