Monday, November 28, 2011

“SAY IT! SAY IT!” Yelling as an essential function

4z3bmwpgDid you know that the ability to yell at one’s students is an essential function of a teacher? According to Johnson v. Cleveland City School District (6th Cir. 11/15/11), because the ability to “verbally control” resistive students is an essential function of an elementary or middle school teacher, Sha’Ron Johnson was not otherwise qualified for her position with the Cleveland schools and therefore could not succeed on her ADA claims.

After a 1988 car accident damaged Johnson’s spinal cord, she suffered from Cervical Myelopathy, which caused her body to weaken over time, and which could be aggravated by stress or over-exertion. As a result, Johnson’s doctors provided the school district documentation that she “not be required to verbally control resistant behavior in students that persists after initial warning.” The school district, believing that “verbally controlling” students was an essential function of an elementary or middle school teacher or counselor, terminated her employment.

The 6th Circuit agreed: because Johnson was medically unable to “verbally control” students, she was not qualified for any available positions:

As the District explained to Johnson in its letter on July 17, 2007, these restrictions are “problematic.” They seek to exempt Johnson from “the requirement of disciplining students and maintaining order in the classroom,” which is “an essential function of the job.” The District’s letter explained that “[t]he consequences of a failure to maintain such order result in a direct threat to the safety and security of you, the students, and other faculty, staff, and students in the building,” and fail “the responsibility of the District to provide an orderly environment to its students for learning.” …

“Teachers and counselors, whether working with large groups, small groups, or one-on-one, are required to deal with the students in their care, not only when they are quiet and well behaved, but also when they are loud, restless, and possibly belligerent…. Teachers, counselors, and other adults employed at schools need to be physically, mentally, and emotionally capable of managing and controlling students in those circumstances.”

What is the takeaway for employers? Just because the ADA (as amended by the ADAAA) renders virtually every medical condition a protected disability does not render employers defenseless. Essential functions come in all shapes and sizes. When handling an accommodation request from a disabled employee, do not omit consideration of all facets of the job.