Since the Americans with Disabilities Act (ADA) was amended a few years ago to expand on what is considered a “disability,” almost any medical condition of any consequence may now be enough for an employee to be considered “disabled.” While many past ADA claims were defended by arguing that the employee was not truly disabled, that defense is practically gone now (unless the employee really has no cognizable medical condition).
The key question today in many ADA cases is whether the employee is a “qualified individual with a disability.” A “qualified individual” is someone with an actual disability who, with or without reasonable accommodation, can perform the essential functions of the job. It is an employee who can carry out the fundamental duties of the position that the person is actually required to perform. Those essential functions may be about doing the job correctly, safely, as required by rules, policy or law, and within an employer’s expectations. If the employee can do those tasks — either without assistance or through an employer providing a reasonable accommodation — then the employee cannot be discharged or prevented from doing the job due to his or her disability.
Many times cases turn on whether a job duty is essential. Courts consider whether a job function is “essential” on a case-by-case basis, considering factors such as any job description, the employee’s actual experience (and that of similarly situated co-workers) in the position, and the practical realities of the job based on testimony by employees and supervisors. Thankfully, courts have recognized that the employer’s judgment and discretion is key; what the employer defines as important and essential matters a whole lot in making that determination. However, the employer’s judgment does not go unchecked. Courts will consider the real experience of the employee (and others) in the job, so just because an employer says a job duty is essential does not make it so. If the employee never had to carry out that duty, or it is not really what the employee was hired to do, whether that duty is essential may end up being a question for a jury to decide.
Consider a recent case decided by the Eleventh Circuit Court of Appeals (which covers Georgia, Florida and Alabama). In Jordan v. City of Union City, GA, a police department removed a police officer after he experienced heightened anxiety during work and was found to have a group of anxiety-related medical disorders. The Court had little trouble recognizing that a police officer’s essential functions include “exercising sound judgment in emergency and stressful situations.” In light of the officer’s testimony that he could not completely prevent or control his anxiety so that it would not occur at work, the Court ruled he was not able to carry out that (and other) essential job duties, and that no reasonable accommodation existed. Therefore, even though the employee was fully capable of performing the duties of his position most of the time, even an infrequent inability to perform the essential functions of his position meant he was not a “qualified individual” under the ADA. So, his removal from the job was lawful.
This decision makes perfect sense, especially in the context of a police officer. In most jobs, however, the essentiality of job duties are not quite as obvious. Job descriptions that are written, clear, accurate — by truly reflecting what the employee does and has to do to perform the job — and regularly updated are important. Ultimately, an employer that is unable to accommodate a disabled employee and wants to remove him from (or not hire him for) a job must be able to show that he cannot perform job duties that are truly essential. Anything less than crystal clear proof may leave the question of whether the employee is a “qualified individual” up in the air, and subject to protracted (and expensive) litigation.