FEHA-Compliant Job Descriptions—Some Do’s and Don’ts

Yesterday, attorney Marc L. Jacuzzi described how job descriptions and the way they outline essential functions are critical to Fair Employment and Housing Act (FEHA) compliance; today, he shares a few do’s and don’ts when it comes to crafting these job descriptions.

Jacuzzi, who is a shareholder in the law firm of Simpson, Garrity, Innes, and Jacuzzi, shared his expertise in a recent webinar presented by BLR® and HR Hero®.

The Do’s

Here are Jacuzzi’s strategies for success in crafting job descriptions:

• Do use clear, concise, and nontechnical language. (Jacuzzi does note, however, that if an essential function is technical in nature, such as C++ programming, you should feel free to use the language necessary to communicate the function.) Be sure that you as an employer understand what’s written, prospective employees will understand it—and a judge and jury will understand it.
• Do focus on the desired outcome of an essential function rather than the methods of performing the function. Why? Because there might be more than one method to accomplish the same task, says Jacuzzi, and being too specific about the method may improperly screen out qualified disabled individuals. Some examples of proper phrasing:
  • “Record notes during meetings” instead of “write notes during meetings”
  • “Ascend/descend” instead of “climb”
  • “Detect, perceive, or identify” instead of “see”
  • “Transport, move, or position” instead of “carry” or “lift”

Need help accommodating your employees with bipolar disorder? Join us on April 16, 2015, for the new interactive webinar California Employees with Bipolar Disorder: HR’s Practical Accommodation Roadmap. Learn More

• Do ensure that any educational requirements or other job requirements are job‐related and consistent with business necessity. For example, if the employee does not actually need a high school diploma to perform the position (which is perhaps the case in some labor/construction jobs, notes Jacuzzi), don’t put down a high school degree as a job requirement.

Some employers may question why they should avoid getting into certain specifics, especially regarding methods of performing tasks and education levels. Jacuzzi emphasizes that these sorts of job requirements, even if neutrally applied, may have a disparate impact on protected classes and can lead to a discrimination claim.

The Don’ts

Here are some job description don’ts to be wary of:

• Don’t continue to use outdated or inaccurate job descriptions. The EEOC, judges, or juries may scrutinize a job description based on:
  • Whether the essential functions listed are actually essential; and
  • Whether employees holding the position actually perform the listed tasks. For example, says Jacuzzi, if the description states that an employee must lift boxes weighing more than 25 pounds, do the boxes actually weigh more than 25 pounds?
• Don’t wait until after a complaint is made to draft a job description. Jacuzzi urges employers to be proactive.

Crafting FEHA-compliant job descriptions isn’t the only challenge of accommodation under California law. Quick: If a California employee identifies as having bipolar disorder, should HR request a doctor’s note? What rights does he or she have under the ADA, FEHA, and other laws? What qualifies as reasonable accommodation?

It’s a lot to keep track of, and you need to be informed in order to comply. How to get there? Fortunately, there’s timely help in the form of BLR’s new webinar—California Employees with Bipolar Disorder: HR’s Practical Accommodation Roadmap. In just 90 minutes, on April 16, 2015, you’ll learn everything you need to know about accommodating employees with bipolar disorder in your California workplace.

Bipolar disorder can appear as mood swings ranging from manic stages to depression and can affect an employee’s performance. Workers with bipolar disorder may seem to be the most talented and productive, then quickly become the least so. Common symptoms: Extremely energetic, agitated, distracted, and impulsive. At other points, the same worker may exhibit sluggishness and have difficulty concentrating or remembering things. This inconsistency presents accommodation and management challenges for HR.

As with other disabilities, a leave of absence may be requested as an accommodation, so you must understand your legal responsibilities under both FMLA and the California Family Rights Act.

By participating in this interactive webinar, you’ll learn:

• When bipolar disorder is considered a disability under the ADA and FEHA
• How to keep employees’ medical information private
• What you can and can’t require from employees under the ADA and FEHA
• The key attributes of bipolar disorder
• Tips on how best to accommodate employees with bipolar disorder in the California workplace
• Whether you should treat a worker you suspect of having bipolar disorder as if they have it
• What kinds of time off or leaves of absence employees with bipolar disorder might be entitled to
• Whether reasonable accommodations can extend to changing supervisors
• Keeping accommodations reasonable—not eliminating essential functions
• How to handle infractions by employees who have bipolar disorder
• And much more!

Register now for this event.

Thursday, April 16, 2015
1:30 p.m. to 3:00 p.m. (Eastern)
12:30 p.m. to 2:00 p.m. (Central)
11:30 a.m. to 1:00 p.m. (Mountain)
10:30 a.m. to 12:00 p.m. (Pacific)

Don’t miss it—sign up, and reserve your spot today. Can’t make it to the live event? Order the recording, and learn at your convenience.

Download your copy of 13 Job Description Do’s and Don’ts today!