By: Storrs Downey
Critical to the determination of whether an employee is a “qualified individual” entitled to protection under the Americans with Disabilities Act is whether he/she can perform the essential functions of his/her job with or without reasonable accommodations. 42 U.S.C. §12111(8).
In the recent Seventh Circuit court decision in Brown v. Smith, No. 15-114, 2016 WL 3536619 (7th Cir. 6/28/16), the Court affirmed a verdict by a jury with damages awarded to an employee who argued that he was discriminated against and terminated because of his diabetic condition and not because he did not possess a CDL (commercial driver’s license) to drive a city bus. The Court found that it was a question of fact for the jury whether the possession of a CDL license was an essential function of the street supervisor position held by the plaintiff.
The employer argued that the CDL was demonstrated to be an essential function as it was delineated in the plaintiff’s job description which stated: street supervisors must hold a CDL.
The Seventh Circuit replied that a written job description was only one of several functions to look at in determining whether a particular requirement or task is an essential function. Other factors include: (1) “the employer’s judgment as to which functions are essential”’ (2) the “amount of time spent on the job performing the function”; (3) the “work experience of past incumbents in the job; and (4) the “consequences of not requiring incumbent to perform the function”. 29 C.F.R. §1630.2(n)(i-iv).
In the present case, trial testimony established that driving a bus was not a key responsibility for supervisors, plaintiff never had to drive a bus during his four years as a supervisor and other supervisors only rarely had to do so. Further, replacement drivers could generally be secured quickly for this task making it unnecessary for the supervisors to drive a bus.
The Court concluded there was sufficient evidence for the jury to conclude that possessing a CDL (or for that matter driving a bus) was not an essential job function for a city supervisor.
While it is recommended that written job descriptions be prepared for all positions provided by an employer, in evaluating whether a particular job function is “essential” each of the aforementioned factors should be closely examined by the employer when faced with a decision whether to terminate an employee who could not perform that task with or without a reasonable accommodation.