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The Importance of Written Job Descriptions Under the Americans with Disabilities Act

by The Human Equation, Inc. on 11/16/2009
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For the most part, the only time any real thought and effort goes into drafting a job description is when a job vacancy needs to be filled. Otherwise, employers routinely and informally adjust their employees’ job functions on an as-needed basis. While this method of managing a workforce may be easy, it is far from effective, especially in the context of the Americans with Disabilities Act (ADA).

Since its enactment in 1990, the ADA has afforded qualified individuals with a disability protection from discrimination in the employment context. More recently, the ADA Amendments Act (ADAAA) has arguably lowered the threshold for ADA violations, thereby presumably making it easier for employees to maintain a claim for unlawful discrimination on the basis of disability. This means that employers need to increase their efforts to protect against ADA violations, including perhaps the most effective proactive measure employers can take to protect against violations—the use of effectively written job descriptions.

The significance of job descriptions derives from the manner in which the ADA is drafted. The ADA protects individuals only if they can perform the essential functions of the job with or without reasonable accommodation. Individuals who cannot perform the essential job functions are not considered qualified individuals under the ADA, and are therefore not protected by it. Thus, determining a job’s essential functions is critical to determining whether an individual who is applying for or occupying a particular position is protected by the ADA.

Despite the significance of this determination, the ADA gives employers considerable discretion in determining which functions are essential to a position. Specifically, the ADA provides that “consideration shall be given to the employer’s judgment as to what functions of a job are essential.” Moreover, the ADA provides that “if an employer has prepared a written job description before advertising or interviewing applicants for the job, this description shall be considered evidence of the essential functions of the job.”

Additionally, certain provisions of the ADAAA serve to increase the significance of job descriptions. Prior to the ADAAA, employers defending a claim of discrimination under the ADA have generally succeeded in arguing that an individual’s impairment does not qualify as a disability under the ADA. However, the effectiveness of such a strategy has likely been undermined by the ADAAA, which provides that the issue of whether an individual is disabled under the ADA “should not demand extensive analysis.” Thus, establishing that an employee is unable to perform the job’s essential functions, and is therefore not covered by the ADA, takes on even greater significance than it had prior to the ADAAA.

The first step to drafting an effective job description is to determine each position’s essential functions. According to the regulations interpreting the ADA, the term “essential functions” means the fundamental job duties of the employment position. It does not include the marginal functions of the position. A specific function may be considered essential for any of several reasons, including:

  • The function may be essential because the reason the position exists is to perform that function;
  • The function may be essential because of the limited number of employees available among whom the performance of that job function can be distributed; and/or
  • The function may be highly specialized so that the incumbent in the position is hired for his or her expertise or ability to perform the particular function.

Evidence of whether a particular function is essential includes, but is not limited to

The employer’s judgment as to which functions are essential;

  • Written job descriptions prepared before advertising or interviewing applicants for the job;
  • The amount of time spent on the job performing the function;
  • The consequences of not requiring the incumbent to perform the function;
  • The terms of a collective bargaining agreement;
  • The work experience of past incumbents in the job; and/or
  • The current work experience of incumbents in similar jobs.

Once the essential job functions of a particular position are established, an accurate and detailed job description must be drafted. Although the ADA does not require the inclusion of any special wording or language in the job description, there are a few rules which employers should follow when drafting job descriptions.

An effective job description should:

  • state the title of the position and its rank and status within the company hierarchy (managerial, supervisory, clerical, janitorial, etc.);
  • list essential functions and tasks, in this order --an action verb, the task, and the expected outcome, as in: "Schedules building maintenance and repairs to ensure uninterrupted business operations;"
  • specify job qualifications, especially education and experience requirements, but also mathematical reasoning ability, willingness to learn, customer service skills, experience working on a team, orientation skills, etc.;
  • include probable physical demands of the position (e.g., "must be able to lift 75 pounds frequently in an eight-hour shift") with a statement that reasonable accommodations will be made for the disabled employee, if necessary;
  • include typical environmental factors affecting the position (excessive noise, high temperatures, outdoor work in rain and snow, etc.); and
  • list non-essential duties or responsibilities that can be performed infrequently or would not alter the underlying reason for the position; however, these duties should be clearly distinguished from essential functions and may not be considered for hiring purposes under the ADA.

Through careful job analysis, the specific essential functions of a position and the qualifications to perform the functions—with or without reasonable accommodations—can be determined. This can help demonstrate that the job functions apply equally to all employees holding a particular position.  Also, a specific job description can be used to establish that a decision not to hire a disabled applicant was neither capricious nor discriminatory.

Employers have a significant amount of discretion when it comes to establishing the essential job functions of their workforce. And, since the lack of judicial interpretation of the ADAAA makes it difficult to accurately predict the precise requirements of the newly-amended law, employers should make every effort to ensure they are protected. Putting time and effort into writing a detailed and accurate job description could go a long way towards reducing the risk of defending an employment decision in court.

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