Top Disability Discrimination Lawyer Answers: Does my disability really keep me from performing my job? How do I determine what are the essential functions of my job? What do I do if my employer tells me I cannot perform my job because of my disability?
It is unlawful disability discrimination for an employer to take an adverse action against a person with a disability if that person can still perform the essential functions of his or her job with or without an accommodation. But, many disabled employees ask, “how can I tell if a duty is considered an essential function of my job?” A district court recently explored this question.
In Henschel v. Clare Co. Rd. Comm., 6th Cir. No. 13-1528 (Dec. 13, 2013), Plaintiff Wayne Henschel was told by his employer, Clare County Road Commission (“CCRC”), that he could not return to his position as an excavator operator after he lost part of his leg in an motorcycle accident. Wayne brought a lawsuit against CCRC, arguing that they discriminated against him in violation of the Americans with Disabilities Act (“ADA”). CRCC filed a motion arguing that the judge should rule in favor of CCRC because it is clear that as result of his disability, Wayne could not perform essential functions of his job and position. Essentially, the question was whether Wayne was wrongfully terminated?
The trial court granted the motion, holding that there was no wrongful termination. But, the finding of no wrongful termination was overruled on appeal. The appellate court held that it was not clear that Wayne could not perform essential functions of his position, and the facts should instead be presented to a jury to decide.
Under the ADA, employers are required to make reasonable accommodations for any qualified individual. The ADA defines a qualified individual as, “an individual with a disability who, with or without reasonable accommodation, can perform the essential functions of the employment position that such individual holds or desires.” Under Equal Employment Opportunity Commission (“EEOC”) regulations, a job function may be essential for the following reasons: (1) because the position exists specifically to perform the function, (2) because there is a limited number of employees amongst whom the function can be distributed, and (3) the function is highly specialized and the person in the position was hired for his or her expertise or ability to perform the function. Other reasons may also be considered.
In Henschel, Wayne was an excavator operator. His primary function was to run an excavator, which is equipment used for digging ditches and trenches. The excavator had to be pulled by a manual transmission semi-truck to different job sites. Different employees were responsible for hauling the truck to the job sites, but Wayne hauled it 70 percent of the time. After Wayne recovered from his injury, he received a medical waiver that permitted him to retain his CDL, but he could only operate vehicles with automatic, not manual, transmissions. Because of the loss of part of his leg, Wayne was no longer able to haul the excavator, so he was told by CCRC not to return to work.
CCRC claimed that hauling the excavator was clearly an essential function of Wayne’s employment. The court determined that it was not so clear. It held whether a function is essential is very fact-specific, and there are several factors that can be considered. In this case, CCRC’s job descriptions were a very important factor. The court looked at the job description for excavator operator, as well as the job descriptions for other positions. The job description for excavator operator did not include hauling the excavator. The job description for truck/tractor driver did include hauling the excavator. The court believed that a jury could look at these job descriptions and come to the decision that hauling the excavator was not an essential function of Wayne’s position.
From this decision, we see the importance of job descriptions. If you are being terminated because your employer states that your disability is prohibiting you from performing an essential function of your job, make sure you review the company’s job description for your position and keep a copy. If the function you cannot perform is not listed, your employer may be in the wrong. A good way to be proactive and avoid future issues is to consistently check your job description and make sure it accurately reflects the work you are actually performing. If any function that is listed is not something you typically do, notify your employer and ask for the function to be removed. This may help you avoid any potential issues down the road if there is debate over whether a duty is an essential function of your position.
Another important factor in Henschel was need. The court determined that there was no need for Wayne to have to haul the excavator. Around ninety percent of the time, the excavator was already at the job site. The need to have it hauled was infrequent. Further, there would be no hardship to the company if the semi-truck driver hauled the excavator. In fact, current and previous employees of CCRC testified that they believed the hauling of the excavator to be the duty of the person holding the truck/tractor driver position. A function may be found to not be essential if the company does not need the disabled employee to perform it.
Having to live with a disability is difficult enough without worrying about the effect it may have on your job. If you are disabled or your employer perceives you as being disabled; and you have been fired, wrongfully terminated, discriminated against, demoted, wrongfully disciplined, denied wages, or even think that you might need a disability discrimination lawyer, then call the right attorney to schedule a free and confidential consultation at 866-797-6040. The best option is not to wait. Spitz, The Employee’s Law Firm, and its attorneys are experienced and dedicated to protecting disables employees’ rights under ADA and Ohio law.
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The materials available at the top of this page and on this employment law website are for informational purposes only and not for the purpose of providing legal advice. If you are still asking, “how do I get a work accommodation for my disability?”, “am I disabled under the ADA?”, “what should I do if…” or “can my boss fired me for …”, it would be best for you to contact an Ohio attorney to obtain advice with respect to disability discrimination questions or any particular employment law issue. Use and access to this employment law website or any of the links contained within the site do not create an attorney-client relationship. The legal opinions expressed at or through this site are the opinions of the individual lawyer and may not reflect the opinions of Spitz, The Employee’s Law Firm, attorney Brian Spitz or any individual attorney.