Monday, December 3, 2018

What can "Elf" teach us about the ADA?


Friday night, the Hyman clan carried out our annual holiday tradition of watching "Elf." Since much of the story took place in and around various workplaces, this year I decided to watch with an eye towards shareable employment law lessons.


Early in the story, Buddy learns the harsh reality that he is not actually an elf, but a human. He learns this lesson after falling 985 Etch A Sketches short of his production expectations, and being transferred to Jack-in-the-Box testing (the job reserved for "special" elves).

Assuming that Buddy's height is a disability in the North Pole (and if the ADA protects dwarfs down south, it's safe to assume the North Pole's disability discrimination laws would similarly protect Buddy's heightened height up north), what ADA lessons does this parable teach us?

1. Reasonable production standards

The ADA does not require an employer to lower production standards—whether qualitative or quantitative—that it applies uniformly to employees with and without disabilities. An employer may, however, have to provide reasonable accommodation to enable an employee with a disability to meet the production standard.

Thus, if Santa requires 1,000 Etch A Sketches per day, then Buddy is required to make 1,000 Etch A Sketches per day, disability or no disability. Santa may, however, have to offer Buddy a reasonable accommodation (if available) to meet that quota. Santa may also choose to lower or waive the production standard,  but he is not required to do so. Keep in mind, however, that if one waives or lowers the requirement for one employee, it makes it difficult to argue for future employees that the production requirement is truly essential, or that altering it is not a reasonable accommodation.


2. Transfer as reasonable accommodation

The ADA specifically lists "reassignment to a vacant position" as a form of reasonable accommodation. An employer must consider this type of reasonable accommodation for an employee who, because of a disability, can no longer perform the essential functions of their current position, with or without reasonable accommodation. Reassignment is the reasonable accommodation of last resort and is required only after it has been determined that: (1) there are no effective accommodations that will enable the employee to perform the essential functions of his/her current position, or (2) all other reasonable accommodations would impose an undue hardship.

There are, however, several caveats.

The employee must be "qualified" for the new position, both by satisfying the requisite skill, experience, education, and other job-related requirements of the position, and by being able to perform the essential functions of the new position, with or without reasonable accommodation. An employer is under no obligation to assist the employee is becoming qualified, such as by providing training to enable the employee to obtain necessary skills for the job.

"Vacant" means that the position is available when the employee asks for reasonable accommodation, or that the employer knows that it will become available within a reasonable amount of time.

The reassignment must be to a position equal in pay, status, or other relevant factors (such as benefits or geographical location). If there is no vacant equivalent position, the employer should reassign to a vacant lower level position for which the individual is qualified and which is closest to the employee's current position in terms of pay, status, etc.

For Buddy, that position was Jack-in-the-Box tester, an open position for which he was qualified.

There you have it. ADA lessons from "Elf." Happy holidays.

Real Time Web Analytics