Yes, litigators must come to the office and go to court, says federal appellate court

Bad news for all you coffee-shop lawyers out there.

***ducks lightning bolt***

About a year ago, I blogged here about a litigation attorney with the State of Louisiana. She has a “disability” under the Americans with Disabilities Act. On account of her illness, the U.S. Department of Justice accommodated the litigator by allowing her to telecommute from home temporarily, hoping to eventually reintegrate her into the office.

After trying to come back to work, sadly, the litigator was hospitalized. Many months later, the DOJ advised that it would no longer accommodate the litigator’s request to work from home; most notably, because her own doctor restricted all of her essential job functions as a litigation attorney. A few weeks later, the litigator returned to the office, worked for a few months, resigned, and sued under the ADA.

Can a litigator stay home, miss court, and still be “qualified” under the ADA?

An employer must accommodate an employee with a disability when it is reasonable to do so and that accommodation will allow the individual to perform the essential functions of the job. Indeed, to prove a failure-to-accommodate claim under the ADA, a plaintiff must be a “qualified individual with a disability.”

The issue on appeal in Credeur v. State of Louisiana (opinion here) was whether the plaintiff-litigator was qualified under the ADA.

How does one determine whether an employee with a disability is “qualified”?

According to the Fifth Circuit, you start with the language of the statute:

For the purposes of this subchapter, consideration shall be given to the employer’s judgment as to what functions of a job are essential, and if an employer has prepared a written description before advertising or interviewing applicants for the job, this description shall be considered evidence of the essential functions of the job. 

And then you move on to the regulations, fancy that:

Further, the regulations promulgated by the Equal Employment Opportunity Commission (“EEOC”) list seven non-exhaustive factors to guide the essential-function inquiry:  (i) The employer’s judgment as to which functions are essential;  (ii) Written job descriptions prepared before advertising or interviewing applicants for the job;  (iii) The amount of time spent on the job performing the function;  (iv) The consequences of not requiring the incumbent to perform the function;  (v) The terms of a collective bargaining agreement;  (vi) The work experience of past incumbents in the job; and/or  (vii) The current work experience of incumbents in similar jobs. 

Notice what’s missing from that list of seven items? It’s the judgment of the employee. Because it don’t mean squat in determining what job functions are essential:

While we are mindful that employees can be good sources of information regarding their day-to-day activities and the prerequisites for success on the job, an employee’s unsupported testimony that she could perform her job functions from home does not create a genuine dispute of fact to preclude summary judgment…Furthermore, unlike the employer’s judgment, which is explicitly mentioned in the statute and EEOC regulations, neither the statute nor regulations nor EEOC guidance instructs courts to credit the employee’s opinion about what functions are essential.

Concluding that the plaintiff “would have her job be the exception,” the Court instead deferred to written correspondence from the DOJ, emails, and other evidence that the DOJ considered coming to work and going to court to be essential job functions.

In sum, the DOJ did not fail to accommodate the plaintiff. She wasn’t qualified to perform the job.

Well, since you’re not the Department of Justice, why should you care?

It’s your company; you get to set the rules. I’ll make it easy for you:

  1. Start with your job description. How’s it look?
  2. Talk to your employees and their managers about the job.
  3. Update your job description, identifying which job functions are essential and which are not.
  4. If it’s accurate, have the employee sign the job description. Otherwise, repeat steps 2 and 3.

Every so often, as the company grows (or shrinks), repeat steps 1-4.

There should be no dispute as to the essential functions of the job.


“Doing What’s Right – Not Just What’s Legal”
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