Monday, April 3, 2017

Job descriptions count (but not as much as you think) in ADA cases


Donald Bush worked as a chef manager for Compass Group. According his written job description, his duties included routinely lifting more than 10 pounds. Bush informed his employer that he suffered from rapidly progressing cervical/thoracic spondylosis (a degenerative back condition), and requested a transfer to a less physically demanding job. Ultimately, Compass Group fired him because his illness prevented him from heavy lifting of over 50 pounds.

So, who wins Bush’s disability discrimination claim? Bush (based on the 10 pound limit in his job description), or Compass Group (based on its estimation of the practical realities of his job’s lifting requirements)?

The answer? In Bush v. Compass Group (6th Cir. 3/23/17), the appellate court affirmed the trial court’s dismissal of Bush’s claim.
Uncontroverted evidence shows that lifting up to fifty pounds was an essential part of Bush’s job duties. During his deposition, Bush confirmed that the written job description did not accurately reflect his actual job duties. Specifically, when asked about the description’s statement that candidates needed to be able to lift up to ten pounds, Bush stated that he “was lifting and moving quite a lot more than that.” Bush confirmed that he was required to move cases of meat and fifty-pound bags of potatoes and sugar. Moreover, Bush stated he was lifting heavy weights “for quite a bit of my employment” because he would have to assume the duties of less senior cooks when they did not show up for work. When asked if lifting heavy weights “was essential” to his job, Bush responded “Yes. Yes.”
Thus, because Compass could not accommodate Bush’s disability to meet the actual essential function of his job, the ADA did not protect his job.

A written job description is only one of seven factors courts consider in determining whether that function is essential to the job:
  1. The employer’s judgment as to which functions are essential;
  2. Written job descriptions prepared before advertising or interviewing applicants for the job;
  3. The amount of time spent on the job performing the function;
  4. The consequences of not requiring the incumbent to perform the function;
  5. The terms of a collective bargaining agreement;
  6. The experience of past incumbents in the job; or
  7. The current work experience of incumbents in similar jobs.
Thus, written job descriptions are important, but are not dispositive of a job’s essential functions. Just because you list a function as “essential” doesn’t mean a court has to take your word for it. If the other six factors show otherwise, then they will carry the day, and not the written job description.

Please do not, however, mis-assume that you should not have written job descriptions. To the contrary, you should have written job descriptions for each position in your organization. They not only help establish reasonable expectations for what you expect from your employees in a position, but it also help set a baseline for what you do, or do not, have to reasonably accommodate. You must provide a reasonable accommodation to enable a disabled employee to perform the essential functions of a job; you do not, however, have to accommodate the non-essential functions. The point is that a job description is only part of the story of whether a job functions is essential; it is rarely ever the whole story.

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