To be covered or protected by the Americans With Disabilities Act (ADA) an applicant or employee must be a "qualified individual" which means that they can "with or without reasonable accommodation, can perform the essential functions of the employment position that such individual holds or desires." But how do you tell what is an essential function and who gets to decide? The Eleventh Circuit's recent decision in Samson v. Federal Expresss, No 12-14145 (March 26, 2014), provides some helpful guidance.
Richard Samson, a Type-1 insulin-dependent diabetic, applied for a position as a mechanic at Fed Ex's facility in Ft. Myers, Florida. Samson was offered the job contingent upon passing a DOT medical exam, which he failed subsequently because of his diabetes. Fed Ex claimed that the Federal Motor Carrier Safety Regulations (FMCSRs) required it rescind Samson's job offer, since the job purportedly required DOT certification because Samson would be test-driving vehicles on which he had worked. Samson sued Fed Ex for disability discrimination violating the ADA.
The ADA makes it unlawful for an employer to use "qualification standards ... that screen out or tend to screen out an individual with a disability .. unless the standard .. is shown to be job-related for the position in question and is consistent with business necessity." The crux of Samson's claim was there was no real need or legitimate business necessity for Fed Ex demanding he pass the DOT physical; after all, Samson was going to work only as a mechanic, not as a truck driver. Nevertheless, the district court granted a summary judgment to Fed Ex.
The Eleventh Circuit reversed. With regard to the criteria as to whether a particular job function is "essential" the following were identified:
- the employer's judgment although this is not conclusive
- any written job description prepared at the start of the hiring process
- the amount of time spent on the job performing the function
- the past work experience of employees that did the job; and,
- the current work experience of employees in similar jobs.
What tipped the analysis in Samson's favor was how little time each work year Fed Ex's mechanics spent test-driving vehicles: Fed Ex mechanics in Florida spent an average of 3.71 hours per year actually test-driving a vehicle; and, the candidate hired instead of Samson had only test-driven a vehicle three times in the three years he'd been working for it. So the point was basic: "If test-driving were such an essential funcaiton, as Fed Ex contends, one would expect it to be performed with regularity." This insignificant work time, the court concluded, made it reasonable for a jury to find that test-driving vehicles was not an essential function of a mechanic's job for Fed Ex.
The Sixth Circuit recognizes that whether a task is an "essential job function" is one for the jury to decide: "Whether a job function is essential is a question of fact that is typically not suitable for resolution on a motion for summary judgment." Keith v City of Oakland, 703 F3d 918, 926 (6th Cir. 2013).
