by Jodi R. Bohr, Gallagher & Kennedy, P.A.
Under the Americans with Disabilities Act (ADA), an employee who is a qualified individual with a disability may not be subjected to discrimination or an adverse employment action on the basis of her disability. The ADA, however, does not prohibit an employer from requiring an employee to be able to perform the essential functions of her job with or without a reasonable accommodation.
But what happens when the essential functions of a job change over time, turning a formerly qualified individual with a disability into an employee who is unable to perform the essential functions of her job? Further, what happens when reasonable accommodations still do not make the employee able to perform the essential functions of her job?
Violations Processor Position
American Traffic Solutions (ATS) of Mesa hired “Sarah” as a violations processor in January 2008. Violations processors are required to “view and process video footage of traffic events taken by ATS cameras, which . . . is provided to ATS'[s} municipal clients for further review.”
The position required Sarah to enter data into computers and process a certain number of potential violations per hour (VPH). When she was hired in 2008, the VPH requirement was 70, meaning violations processors were required to review and process 70 potential violations per hour. During her employment, the VPH requirement ultimately increased to 110. All violations processors were subject to the increased workload.
In addition to meeting VPH requirements, violations processors are subject to attendance policies under which they are assessed points for incurring certain types of absences. Disciplinary action, up to and including termination, is taken as violations processors accrue points in a rolling 12-month period.
For example, three points are given for failing to show up for work without notice. A documented verbal warning is given when a violations processor accrues five points in a 12-month period, and discharge occurs when a violations processor accrues nine points.
Inability to Meet Standards
During her employment with ATS, Sarah developed “some cramping in her right wrist and hand” and was diagnosed with Quervain tenosynovitis (swelling caused by repetitive motion). The pain caused her to struggle to keep up with the increasing VPH requirement.
ATS provided her a standing workstation, a barstool, and ergonomic computer equipment (a keyboard, mouse, and wrist pad). ATS also accommodated Sarah’s request for a reduced work schedule and increased breaks that did not count against her VPH requirement. Even with the accommodations, she averaged 89.66 VPH in 2012. She received several verbal and written warnings for consistently failing to meet the VPH requirement.
Eventually, Sarah began missing full workdays without providing the notice required by ATS’s attendance guidelines. Sarah’s unexcused absences caused her to accrue 10 points, resulting in her discharge. She sued ATS for discrimination and retaliation under the ADA.
ATS requested summary judgment (dismissal without a trial), arguing that Sarah was not a “qualified individual with a disability” because she was unable to perform two essential functions of her job (meeting the 110 VPH requirement and complying with the attendance guidelines) with or without a reasonable accommodation.
Essential Function = Fundamental Job Duty
Because ATS argued that Sarah was unable to meet the VPH requirement and comply with its attendance guidelines, an Arizona federal court had to determine whether ATS properly considered the requirements and essential functions of the violations processor job.
In making such a determination, courts consider: (1) the employer’s judgment regarding which functions are essential, (2) job descriptions prepared before the employer advertised the position and interviewed applicants, (3) the amount of time spent performing the function, (4) the consequences of not requiring the employee to perform the function, and (5) the experience of current and former employees in the position. That determination is important because an essential function need not be eliminated, modified, or reassigned to reasonably accommodate a disabled employee.
In this case, the court determined that the VPH requirement was an essential function of the violations processor position. In doing so, the court noted that all violations processors were held to the same standard and that reducing the VPH requirement for one employee would affect scheduling and ATS’s profitability. Likewise, the court agreed with ATS’s argument that attendance is an essential function of any job, noting that if “one is not able to work, one cannot be a qualified individual.”
The fact that Sarah was not a qualified individual was relevant to her retaliation claim as well. The court noted that ATS was able to demonstrate a legitimate nondiscriminatory reason for her discharge—i.e., her violation of its attendance guidelines. Thus, it was up to her to demonstrate that her violation of the attendance guidelines was not the real reason for her termination.
The court found she was unable to do that. In fact, she admitted that her termination was solely due to her repeated violation of the attendance guidelines. The court entered judgment in favor of ATS on Sarah’s ADA discrimination and retaliation claims.
Accurate Job Descriptions
Creating and maintaining accurate job descriptions is important. In this case, an accurate job description went a long way in establishing that the VPH requirement was an essential function of the violations processor job.
ATS’s uniform application of the VPH requirement (mandating that all violations processors be subject to the same workload as it increased over time) served to demonstrate that the employer considered the requirement essential to maintaining productivity. Had ATS established varying productivity levels for the VPH requirement, the court may have decided differently on whether the requirement was an essential function.
Regularly review your job descriptions for accuracy, and compare job descriptions to the actual functions being performed by employees. An especially good time to review and revise a job description is prior to posting an open and available position.
Jodi R. Bohr is an attorney with Gallagher & Kennedy, P.A., who practices employment and labor law, with an emphasis on litigation, class actions, and HR matters, is a frequent speaker on a wide range of employment law topics. She may be reached at firstname.lastname@example.org or 602-530-8035.