Within the last year, interesting trends have emerged from federal courts on a variety of important ADA issues. Striking somewhat of a balance, courts have tended to be more favorable to employers in deciding which functions of a job are truly “essential.” Conversely, many courts have sided with the employee regarding the sufficiency of the job description on the same question. Recently, the U.S. 11th Circuit Court of Appeals released an opinion that continues the latter trend and offers important insights for employers.
Timethia Brown was a customer service representative for Advanced Concept Innovations (ACI). When she became pregnant, she endured hyperemesis gravidarum, a condition characterized by severe nausea and vomiting. She exhausted her Family and Medical Leave Act (FMLA) leave but discovered she could prevent vomiting by spitting regularly and not swallowing saliva.
As an accommodation, Brown requested that she be able to carry a “spit cup” with her onto the production floor. ACI refused, citing cleanliness standards. Eventually, she was fired and filed a lawsuit.
At trial, ACI argued Brown’s job required her to work in the production area, where it couldn’t accommodate spitting. But she disagreed.
Brown argued instead that her customer service role required her to be in the production area only about 20% of the time. The rest of her time was spent in an administrative area, where—as an ACI witness conceded—she could have used her spit cup without any interference with her job duties. The question on appeal for the 11th Circuit was whether her physical presence in the production area was an “essential function” of her job.
The court held a reasonable jury could conclude that being in the production area was not an essential function, and therefore, ACI had failed to accommodate Brown. In reaching its determination, the court made two key findings:
First, it was reasonable for a jury to conclude that a function that involved no more than 20% of an employee’s time wasn’t “essential.”
Second, ACI’s job description, which included both “routine interaction with the quality control or manufacturing groups,” and “walking to and from the production area” as part of the required duties, still didn’t adequately specify that it required physical presence in the production area. Brown v. Advanced Concept Innovations, LLC.
The 11th Circuit, typically an employer-friendly jurisdiction, has now set a tough standard for employers on this front. Whether a task is an essential function remains a fact-intensive inquiry based on many different factors, the “amount of time spent” being among the most difficult to evaluate.
Importantly, the 11th Circuit’s decisions don’t apply to West Virginia, which is covered by the 4th Circuit. But without a clear metric adopted by West Virginia courts, our courts could be inclined to rely on Brown’s “20% rule” when resolving the question under the West Virginia Human Rights Act.
Additionally, the Brown decision should caution employers to scrutinize the language in a job description to ensure it leaves no room for interpretation. As the case illustrates, including tasks that would implicate an essential function—even by any commonsense reading—may not be enough to pass the test.
Drafting a complete and accurate job description is often one of the most challenging feats for an employer. After all, it can be difficult to realize a function is essential until suddenly the employee cannot perform it. At that point, if the function wasn’t contemplated in the written job description, it may work to the employer’s detriment.
To mitigate this risk, you should make sure job descriptions are reviewed regularly for accuracy and completeness, revising when necessary. That said, you should be mindful not to revise a job description in response to a request for an accommodation that would seemingly evade a required function, which would expose you to greater risk of liability for a discrimination claim.
In the same vein, any task that isn’t truly an “essential function” should be removed from the description during the same review because it would only undercut your argument later that the job description truly reflects the essential duties. Finally, you should also consider whether expected job duties or responsibilities are referenced elsewhere in your policies. If it’s too unwieldy to include each and every required job duty within the job description, you should consider referencing the external sources in the job description to make clear an employee’s essential functions aren’t strictly limited to the four corners of the job description itself.
Shelby A. Hicks-Merinar is an attorney with Steptoe & Johnson PLLC in Morgantown, West Virginia. You can reach her at email@example.com.