Courts hearing ADA cases generally trust employers to establish which job functions are essential and which ones are not.
But that doesn’t mean you can trump up job descriptions with “essential functions” that are never performed. Courts sometimes see that as a way to avoid having to reasonably accommodate disabled employees. They’ll only consider those functions that employees perform in reality.
Recent case: Richard McDonald worked as a special agent for the Pennsylvania Office of the Attorney General. His job description was a long one, full of “essential functions,” including “taking down” criminals, performing undercover work and conducting wiretaps.
McDonald injured his back in an auto accident and was off work for many months. When he returned, he could not sit for long periods of time. He was eventually terminated after HR concluded that no amount of reasonable accommodation would allow him to perform that long list of essential functions.
McDonald sued, alleging that he had never performed many of the essential functions and that his job had consisted largely of paperwork and occasionally meeting defendants at district justices’ offices when turning themselves in. He had never “taken down” any individuals or worked undercover.
The court said his lawsuit could continue, concluding that the only essential functions that counted were the ones he actually performed. (McDonald v. Pennsylvania Office of Attorney General, No. 08-0658, WD PA, 2010)
Final note: Consider altering generic and general job descriptions to fit the actual job.