An employer needn't hire a disabled person who lacks the requisite skills, experience and education for the job in question. But if the deciding factor is the disability, you must prove that it interferes with what the ADA terms the “essential functions” of the job.
Those functions should be reflected in the job description. For ADA purposes, a job function is considered essential when:
- The position was established so that the function could be performed. For example, a proofreader’s ability to examine a page visually is an essential function.
- A limited number of employees are available to perform the function. For example, in a very busy office, all employees would be required to answer the phone in addition to their regular tasks. So even if someone was hired as a typist, you could argue that speaking on the phone was still an essential job function.
- A function is highly specialized, and the person in the position is hired for special expertise or ability to perform it.
- The employee spends most of his time performing the essential function.
- Dire consequences would result if the function weren't carried out. For example, a firefighter may have to carry a heavy person from a burning building only occasionally, but the ability to do so is essential to the job.
- The function is cited as essential in a collective bargaining agreement. If such an agreement lists duties to be performed in particular jobs, the terms of the agreement may provide evidence of essential job functions. However, the agreement, like a job description, would be considered along with other evidence, such as the actual duties performed in these jobs.
- Those who’ve performed the job identify it as essential.
Caution: If you intend to use a job description as evidence of essential functions, you should prepare it before advertising or interviewing for the position. According to the EEOC, a job description prepared after an alleged discrimination action can’t be used as evidence.
Also, when determining essential functions, keep in mind that you must concentrate on the result of the function, rather than the manner in which it’s performed. If, for example, a job requires having access to a computer for input and retrieval, it’s not essential that the person use an ordinary keyboard to enter data or visually read the information on the screen. Adaptive devices would enable the person to perform the functions differently but with the same results.
- Drug test leads to disability bias suit against Chicago firm
- Monitoring the virtual water cooler: Facebook and beyond
- Watching the detectives: A cautionary tale on employee privacy
- Be prepared to explain why hiring criteria favor experience more than education
- Don't reject convicted felons unless you have legitimate business reason