Wayne Henschel was employed as an excavator operator for a county road commission when he was seriously injured in a non-work related motorcycle accident. Ultimately, his leg had to be amputated above the knee. As you might imagine, he missed a great deal of time from work. While Mr. Henschel was off work his employer advertised for and filled his position until he could return to work.
After recovering from his injuries, Mr. Henschel asked to return to work as an excavator operator. Before being allowed to do so, Mr. Henschel underwent a fitness for duty examination, in which his ability to perform the essential job functions was evaluated.
The excavator operated by Mr. Henschel was delivered to work sites via a trailer that was pulled by a manual transmission semi-truck. While Mr. Henschel was cleared to return to work, he could only operate an automatic transmission vehicle.
Because he could not operate a manual transmission, he could not haul equipment in the manual transmission semi-truck. Thus, the employer informed Mr. Henschel that he was being terminated because of his inability to transport the excavator to the work site. According to the employer, this was an essential function of the excavator operator position and if Mr. Henschel could not perform it he could not return to work.
Mr. Henschel sued, claiming that when his employer did not allow him to return to work it discriminated against him because of his disability in violation of the Americans with Disabilities Act (ADA).
One of the things that an employee must prove in a disability discrimination lawsuit is that he was qualified to perform the essential functions of the job, with or without reasonable accommodation. If he cannot do so, he loses. Here, the employer asserted that Mr. Henschel could not perform the essential functions of the excavator operator position and that no reasonable accommodation was possible. The trial court agreed and granted summary judgment to the employer.
In doing so, the trial court relied upon (1) testimony by representatives of the employer that hauling is an essential function of the excavator operator position; (2) the court’s own opinion that the excavator operator position would fundamentally change if that responsibility were given to another employee; and (3) the employer did not have other employees who could undertaking the hauling function.
The Sixth Circuit Court of Appeals, which hears appeals from Tennessee, Kentucky, Ohio and Michigan, disagreed and reversed the trial court. The court’s ruling is instructive to employers in a couple of respects when evaluating whether a particular job function is “essential” under the ADA.
First, an employer believing a particular function is essential does not make it so. There is a Latin phrase, ipse dixit, which applies here. Ipse dixit, literally translated, means “he, himself, said it.” Stated differently, it means “it is so because I said it is so.” In this context, the employer’s judgment, without more, that a particular job function is essential is insufficient to establish that it is “essential” under the ADA.
The court emphasized the 7-factor test for determining whether a particular function is “essential”:
1. The employer’s judgment as to which functions are essential;
2. Written job descriptions prepared before advertising or interviewing applicants for the job;
3. The amount of time spent on the job performing the function;
4. The consequences of not requiring the incumbent to perform the function;
5. The terms of a collective bargaining agreement;
6. The experience of past incumbents in the job; and
7. The current work experience of incumbents in similar jobs.
So, while an employer’s opinion as to whether a particular function is essential carries some weight it is only one of the many factors that a court will consider.
The second and most important take home lesson from this case is the importance not only of having written job descriptions, but in having written job descriptions that are complete and accurate. In this case, the duty of hauling equipment indeed was listed as a job function, but not for the excavator operator position. Rather, it was specified in the job description for truck/tractor driver. The employer had three different versions of a job description for excavator operator since 2007 and not a single one listed hauling the excavator or driving a manual transmission vehicle as job function.
In arguing that hauling the excavator via a manual transmission vehicle was an essential function of the job, the employer apparently relied upon a catchall job duty in the job description – “Other duties assigned.” Not good enough, said the Court of Appeals. “Essential functions” under the ADA are those functions that are fundamental to a particular position, not those that are merely marginal to it.
So, is having a thorough job description to cover all fundamental functions of a position enough? Of course not. But combined with testimony from the employer as to why it was a fundamental function of the position, the employer in this case would been much better served and the judgment in its favor at the trial court would have had a much better chance of standing if this function was listed as an essential function.
Do you have written job descriptions? Are they thorough? Were they drafted by someone with actual knowledge of the particular jobs and the fundamental functions associated with the jobs, or did you obtain your job descriptions from a template you found online? Are you relying on a catchall provision like the employer in this case? You have been warned.