Surviving Summary Judgment in the Ada Employment Case-part Ii
| Publication year | 1995 |
| Pages | 1785 |
1995, August, Pg. 1785. Surviving Summary Judgment in the ADA Employment Case-Part II
This is the second segment of a two-part article on recent court interpretations of Title I of the Americans With Disabilities Act ("ADA"). Part I, published in the June issue, explored the issue of what constitutes a protected "disability." This Part II undertakes an examination of court activity interpreting the second aspect of the plaintiff's prima facie case. In this phase of the case, the question is, "Even if the individual is a 'person with a disability,' is he or she a 'qualified' individual with a disability?"
A "qualified individual" is an individual with a disability who, with or without reasonable accommodation, can perform the essential functions of the employment position that the individual holds or desires. It is a two-step inquiry, examining first whether the individual possesses the "requisite skills, background and education," and then inquiring as to the ability to perform essential functions.(fn1)
If an individual who is otherwise qualified cannot perform one or more essential functions because of his or her disability, the employer must consider modifications or adjustments to the job, known as "reasonable accommodations." Thus, the plaintiff must establish that he or she is able to perform the essential functions of the position that he or she currently holds or seeks to hold, with or without reasonable accommodation.(fn2)
In addition to examining essential functions of a particular job, courts determining this issue are finding some rather universal essential functions. Honesty has been found to be an essential function of any job.(fn3) The ability to follow orders of superiors may be deemed essential to any job,(fn4) as is the ability to get along with co-workers.(fn5) Job stress must be tolerated to a reasonable degree.(fn6) The ability to complete work within a reasonable period of time also has been found to be an essential function of any government job.(fn7)
Regular attendance is often deemed an essential job function.(fn8) Courts have shown little sympathy for plaintiffs who have prolonged, frequent and unpredictable absences.(fn9) On the other hand, in Dutton v. Johnson County Board of County Commissioners,(fn10) the employer terminated the plaintiff for excessive use of unscheduled leave. The court distinguished cases holding regular attendance to be an essential function, stating that the focus must be on two factors: whether regular and predictable attendance in the plaintiff's job was more critical than in any other job, and whether total leave hours used by the plaintiff exceeded the number of hours he earned in vacation and sick leave. If these factors are not present, the court held, it would not be "unduly disruptive" to the employer's operations to allow the plaintiff to use earned vacation time for his unscheduled absences.
In determining what are essential functions of a job, the ADA requires the court to give "consideration" to the employer's judgment and written job description, but does not provide that such evidence is to be deemed conclusive.(fn11) In addition, the inquiry will focus on whether the employer actually requires employees in the position to perform the function.(fn12)
Henchey v. Town of North Greenbush(fn13) points out the possible discrepancies between job descriptions and actual job functions. There, the town highway department terminated a laborer with an aggravated back problem because he could not perform heavy lifting. The court found that a job description which provided that a laborer must have the "ability to lift heavy weights" was inconclusive where the plaintiff's supervisor testified that heavy lifting was not an essential function of the job, and that the term "heavy lifting" was inadequately defined.
On the whole, the employer's perspective as to which functions of the job are essential is given great weight. The employer generally will not be second-guessed where production standards establish the quality or quantity of work to be performed. The employer is in the best position to describe the end results to be accomplished.(fn14)
However, Congress did not intend that deference should be given to the employer's judgment as to the work processes to be used to achieve the end results.(fn15) It is important to distinguish legitimate quality or quantity standards from customary work processes. This is an area where employees' advocates may use vocational experts to their advantage. Such experts'
The question of whether a plaintiff is a qualified individual is ultimately intertwined with the question of whether reasonable accommodation would be possible. Reasonable accommodation...
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