Kentucky Employment Law Blog

ADA: Determining What Is an "Essential Function" Of a Job

To fall within the protection of the Americans with Disabilities Act (ADA) an employee or individual must demonstrate that they can "with or without reasonable accommodation ... perform the essential functions of the employment position that such individual holds or desires." A frequently litigated issue in ADA cases is what are the "essential functions" of the job(s) or position(s) at issue. The Sixth Circuit discussed this issue in its recent decision of Rorrer v. City of Stow, No 13-3272 ( February 26, 2014).

Anthony Rorrer was a firefighter who had lost vision in one eye in a non-work-related accident.  He sought to return to work and proposed to do so either as a firefighter or as a fire inspector. The city resisted Rorrer's return, claiming that an essential function of both jobs was being able to safely drive a fire truck under emergency circumstances. Toward resolving this issue the court discussed the numerous considerations and factors that are pertinent to the analysis:

    1. Essential functions are "the fundamental job duties of the employment position the individual with a disability holds or desires. The term ... does not include the marginal functions of the position." 29 CFR 1630.2(n)(1).

    2. A job function may be considered essential because (1) the position exists to perform the function, or (2) a limited number of employees are available that can perform it, or (3) it is highly specialized. Id.

    3. Two factors are "the employer's judgment as to what functions of a job are essential" and an employer's "written description" of the job. 42 USC 1211 (8).

    4. The regulations accompanying the ADA also direct a court to consider five additional factors: (1) the amount of time spent on the job performing the function; (2) the consequences of not requiring the incumbent to perform the function; (3) the terms of the collective bargaining agreement; (4) the work experience of past incumbents in the job; and/or (5) the current work experience of incumbents in similar jobs.

The Sixth Circuit's decision and opinion in Rorrer is a tour-de-force of analyzing the applicable law and regulations that most commonly arise in ADA cases. The court reverses a summary judgment and ultimately remands for further proceedings before a different district judge. Circuit Judge Bernice Donald authored the opinion and was joined by Circuit Judge Eric Clay and a visiting District Judge, Samuel H. Mays Jr. of the Western District of Tennessee.

We discussed the Rorrer case in a previous post, ADA: Should an Employee Propose a Specific Reasonable Accommodation?, and it will be discussed further in subsequent posts.

Robert L. Abell
www.RobertAbellLaw.com

Related articles

Hollister's Motion to Stay ADA Remedies Pending Appeal Denied

The ADA Coalition Of Connecticut

Reassignment and the ADA: No Certain Answers, for Certain!

ADA: Should An Employee Propose a Specific Reasonable Accommodation?

The Americans with Disabilities Act (ADA) requires both employee and employer to participate in good faith in an interactive process to determine how the employees disability may be reasonably accommodated.the employee should be prepared to suggest a specific accommodation. If the accommodation is a transfer to another position, the employee should identify as specifically as possible the position(s) to which transfer would be appropriate. This lesson and others was illustrated by the Sixth Circuit's recent decision in Rorrer v. City of Stow, No 13-3272 (2/26/14).

The plaintiff, Anthony Rorrer, was a firefighter for the City of Stow, Ohio. Rorrer lost sight in an eye in a non-work-related accident. Rorrer was cleared to return to work by his treating physician and initially by the fire department's occupational physician. But the city resisted Rorrer's return and apparently prevailed upon its occupational physician to reverse his position, because he eventually opined that Rorrer was unfit for duty based on "fire regs." 

The supposed disqualifying issue for Rorrer regarding the safety of his driving a fire truck on an emergency basis, given that he had sight in only one eye. He proposed two possible accommodations: (1) continue working as a firefighter and he would not drive a fire truck; and/or, (2) transfer to a fire inspectors job.

The Sixth Circuit, in a decision that both reversed a summary judgment and removed District Judge John R. Adams from handling the case on remand, ruled that both of Rorrer's proposed accommodations were reasonable. First, the court held that the evidence indicated a lack of good faith by the city, since it had refused to discuss Rorrer's reassignment at the meeting where he was fired. Second, the evidence belied  city's claim that Rorrer was unsuitable for a fire inspector's job because his disability kept him from safely operating a fire truck in emergency situations, as there "is no indication on the record that a fire inspector ever actually performed this function." In other words, nonsense.

The Sixth Circuit's opinion was written by Circuit Judge Bernice Donald and was joined by Circuit Judge Eric Clay and District Judge Samuel H. Mays Jr. of the Western District of Tennessee.

Robert L. Abell
www.RobertAbellLaw.com