By Deryn Sumner
A few weeks ago, I had the pleasure of teaching FELTG’s biannual EEOC Law Week alongside Ernie Hadley and Gary Gilbert. On Wednesday, we covered disability discrimination law and focused much of our time on talking about when one is considered disabled, for purposes of making a claim of disability discrimination and the law surrounding requests for reasonable accommodations. As Ernie likes to say, when analyzing disability discrimination claims, there are no points for creativity. You should walk through each part of the analysis in order, starting with whether the employee in question is an individual with a disability. After passage and implementation of the ADAAA more than seven years ago, that analysis has become rather perfunctory as the definition of what constitutes a major life activity was widely expanded, and Congress took great pains to highlight that the purpose of the Act was for broad coverage of those who need its protections.
The next step in the analysis is whether the employee in question is a qualified individual with a disability. Because we received some questions about this part of the analysis during our training, I wanted to dedicate some space here to explain what we mean when we talk about “qualified.”
The Commission’s regulations at 29 CFR 1630.2(m) define qualified as “the individual satisfies the requisite skill, experience, education and other job-related requirements of the employment position such individual holds or desires and, with or without reasonable accommodation, can perform the essential functions of such position.”
Most of this definition is straightforward. An employee, or applicant for a position, must be qualified by way of having the right skillset, prior experience, and whatever educational requirements are needed. The government has no obligation to place unqualified individuals into positions, even if they are protected by virtue of having a disability.
The part that trips up agencies is that an individual can be qualified if he or she can perform the position with accommodation. “But wait!” you exclaim. “We were told not to skip any steps in our analysis and now we’re focused on reasonable accommodation before we’ve determined if the employee is actually entitled to one!” Yes, that’s true, and I don’t have a good response for you as to why “reasonable accommodation,” which isn’t actually defined until later in the sub-section, is used to define “qualified.” But it is part of the definition and must be considered in looking at whether the employee is a qualified individual with a disability.
The second part that can create trouble is the last phrase: “essential functions” of the position at issue. What is an essential function? Again, let’s look at the definition in the regulation at 29 CFR 1630.2(n):
(1) In general. The term essential functions means the fundamental job duties of the employment position the individual with a disability holds or desires. The term “essential functions” does not include the marginal functions of the position.
(2) A job function may be considered essential for any of several reasons, including but not limited to the following:
(i) The function may be essential because the reason the position exists is to perform that function;
(ii) The function may be essential because of the limited number of employees available among whom the performance of that job function can be distributed; and/or
(iii) The function may be highly specialized so that the incumbent in the position is hired for his or her expertise or ability to perform the particular function.
(3) Evidence of whether a particular function is essential includes, but is not limited to:
(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.
Note that the definition contains a variety of factors, none of which are, “I dunno, whatever the employee’s position description says.” The employer must actually think about what the individual does from day-to-day in his or her position. Also note that the definition envisions employees holding the same position in different duty locations to have different essential functions. As we discuss, it’s a heck of a lot easier to determine a job duty is not essential if there are thousands of other employees in a facility who could perform the job duty than someone in a geographically-remote and sparsely-populated workspace.
Employers most often run into problems by failing to actually think about and define the essential job duties when reviewing accommodation requests. Keep these definitions in mind to make sure your analysis is appropriate. [email protected]