Under the Americans with Disabilities Act (ADA) of 1990, an employer of 15 or more employees must not discriminate against an otherwise qualified individual with a disability. The ADA standard imposed on the employer is basically to provide a reasonable work accommodation to the disabled employee unless it would cause an undue hardship to the employer. However, an employer need not change an essential job function in order to provide a reasonable accommodation. Hence, determining the essential job functions is critical in disability litigation. An employer has the opportunity to state the essential functions of an employment position in advance of litigation.
In both 2015 and 2017 the federal Court of Appeals for the Sixth Circuit decided, favorably for the employer, cases in which the critical legal issue was whether “regular in-person attendance” was an essential job function under the stated facts. This comment briefly reviews these two decisions. Always consult an experienced attorney in all employment situations.
In the 2015 decision, EEOC v. Ford Motor Co., the employee in question, a steel buyer, had irritable bowel syndrome and proposed telecommuting as a reasonable accommodation under the ADA. A divided panel of justices ultimately held for Ford that “regular and predictable on-site job attendance” was an essential function of the job. The dissenting Sixth Circuit justices noted that this case required an individualized approach and that there was not a clear time allocation among the various parts of the job, some of which could be accomplished through telecommuting.
The 2017 decision, Williams v. AT&T Mobility Services LLC, involved an employee functioning as a Customer Service Representative (CSR), who reacted to random customer calls with panic attacks and depression that required her to log off of her workstation. She requested a flexible start time, additional breaks during the day, and leave to attend an eight week treatment program. This case was unanimously decided in favor of the employer by a three judge panel.
The Panel noted that “the Ford decision leaves open the possibility that regular attendance might not be an essential function of every job, but suggests that exceptions will be relatively rare.” In the present case, AT&T had strict Attendance Guidelines predating this litigation that “state that regular attendance is an essential function of the CSR position.” The US Code [42 U.S.C. Sec. 12111(8)] provides that written job descriptions “shall be considered evidence of the essential functions of the job.”
The opinion continued: “The Ford court also evaluated whether the employee had proposed a reasonable accommodation that would allow her to perform the essential functions of her job.” In the current situation, the employee provided no evidence of how breaks would address unpreventable panic attacks. Regarding additional leave the Court wrote: “An employer is not required to keep an employee’s job open indefinitely…”; especially “where an employee has already received significant amounts of leave and has demonstrated no clear prospects for recovery.”
To prove unlawful retaliation for requesting an ADA accommodation, an employee must initially prove (prima facie case) that: “1. She engaged in protected activity under the ADA, 2. Her employer was aware of that activity, 3. She suffered an adverse employment action, and 4. A causal connection existed between the protected activity and the adverse action.” However, AT&T had a nondiscriminatory reason for termination (excessive absences) and consistently followed its policies.
The opinion concluded: “In the end this case reflects the reality that there are some jobs that a person with disabilities is simply unable to perform. A blind person cannot be an airline pilot, nor can one with advanced Parkinson’s disease be a neurosurgeon. Similarly, a person like Williams who reacts to random customer calls with anxiety attacks that require her to log off of her workstation is not capable of performing the essential job functions of an AT&T CSR. We therefore AFFIRM the judgment of the District Court [granting the employer’s motion for summary judgment without a trial].”
In light of these decisions, employers should:
Prepare detailed job descriptions clearly identifying essential job functions
Be certain that customary workplace practices do not contradict the job descriptions
Consistently enforce employment rules and procedures
Maintain complete documentation concerning performance reviews, warnings, etc. for each employee
Employees requesting an ADA accommodation should:
Record the time actually spent performing various specific job tasks
Identify customary industry practices in performing this job and what ADA accommodations are typically provided
Determine how the employer has accommodated similarly situated employees.
Carefully demonstrate how a proposed accommodation will address the disability in question
It is noteworthy that courts tend to defer to the employer’s pre-litigation determination of what is an essential job function. Additionally, numerous judicial decisions have determined that regular and reliable attendance is an essential job function.
In response to this deference, it might be argued on behalf of the employee that attendance is more in the nature of a pre-performance qualification standard than an essential job function. An employee may perform by answering customer inquiries (a job function) but does not perform attendance. Rather attendance is a prerequisite to answering inquiries. Under this analysis the question becomes if the qualification (attendance) is job related and consistent with business necessity. This then leads to an inquiry concerning whether or not the qualification is being unlawfully used to discriminate against persons with disabilities.
Much litigation has engaged in a qualification analysis in the areas of discrimination based upon race and sex. For example, requiring airline flight attendants to be female was determined not to be job related and consistent with business necessity. In fact, it was found to be unlawful discrimination based upon sex.
However, seldom have courts currently followed this line of inquiry in attendance related cases. Rather, courts have overwhelmingly deferred to an employer’s statement that attendance is an essential job function without additional inquiry. There is great weight given to an employer’s business judgment. One may argue the relative public policy merits of this judicial approach. Is it simply a common sense free enterprise acknowledgment that private employers decide what work must be performed and how it should be performed, or does it improperly narrow the protections afforded by antidiscrimination laws?
Part of the counterargument is that race and gender are immutable personal characteristics that are not performance based, unlike attendance. Attendance (being present at a specific location), the argument might go, is essential to performance just as one cannot build a building without being physically present at the construction site. However, telecommuting is a developing reality in many service positions, especially where face-to-face interaction does not occur.
This comment provides an incomplete educational overview of a complex topic and is not intended to provide legal advice. Always consult an experience attorney in specific employment situations.