8TH CIRCUIT DEFERS TO EMPLOYER’S JUDGMENT ON WHAT CONSTITUTES AN ESSENTIAL JOB FUNCTION

To claim protected class membership under the ADA, the individual must prove (a) disability within the meaning of the law (an impairment that significantly restricts a major life activity) and, (b) qualification (ability to perform the essential job functions with or without reasonable accommodation). In the case at issue here (Knutson v. Schwan’s Home Service [711 F.3d 911]), decided on April 3, 2013, the 8th Circuit affirmed a lower court summary judgment ruling favoring Schwan on grounds that Knutson was not qualified to perform an essential job function and that, therefore, it is unreasonable as a matter of law to request elimination of that job function.

Knutson was clearly disabled (he suffered a serious eye injury that significantly restricted his ability to see). However, he was deemed not qualified because he could not obtain DOT certification to drive delivery trucks in excess of 10,000 pounds, which Schwan claimed is an essential job function of his position as a Location General Manager (LGM). One of Schwan’s requirements for LGM is to "meet the Federal Department of Transportation [DOT] eligibility requirements, including appropriate driver's license and corresponding medical certification as a condition of employment for this position." After his eye injury, Knutson was given a 30-day leave of absence to either (a) obtain a DOT waiver that would allow him to drive delivery trucks or (b) find a vacant non-DOT certification position elsewhere in the company that he could perform with or without reasonable accommodation. He was unable to do either and was terminated.

The key issue was whether driving is an essential function of an LCM. Knutson claimed that LCM’s rarely drive delivery trucks and, therefore, the requirement to do so is not an essential job function. However, the 8th Circuit accepted the employer’s judgment of what constitutes an essential job function as being “highly probative”, and ruled that “[W]hile sales managers do not necessarily drive the delivery trucks every day or even every week, [they] are required, at the very least, to drive the vehicles from 'time to time.'" The court also ruled that Knutson’s own experience “is of no consequence in the essential functions equation.”

I am concerned that employers may read this ruling and conclude they can use their discretion to define what is essential (a) absent any job analysis data and (b) absent fear that courts will question their judgment. In fact, there is case law to the contrary.

To illustrate, in Borrowski v.Valley Central (1995) [63 F.3d 131], a school librarian with memory and concentration deficits claimed she could perform the essential functions of her librarian job, but needed a teacher’s aide to help her control the students. The 2nd Circuit ruled that Borrowski’s request was reasonable as long as controlling students was not an essential job function. The 2nd Circuit then remanded the case back to the lower court to make that determination.

Consider also Stone v. Mt. Vernon (1997), where Stone, a paraplegic former firefighter, requested a “bureau” job requiring deskwork, but was excluded because the fire chief claimed that bureau personnel must fight fires in emergencies. The 2nd Circuit ruled for Stone, based on the testimony of two long-term bureau employees who opined that such emergencies had never occurred before.

And in PGA v. Martin (2001), Casey Martin, a professional golfer was afflicted with Klippel–Trenaunay–Weber Syndrome, a degenerative nerve disease that made it difficult for him to walk a golf course without pain. He requested use of a golf cart during PGA tournaments. The PGA refused on grounds that having a PGA contestant in a golf cart would fundamentally alter its tournament events, to which the Supreme Court unanimously ruled that walking is not “an essential attribute of the game.” In the words of Justice Stevens (who happened to be an avid golfer):

The use of carts is not inconsistent with the character of golf, the essence of which has always been shot-making. The walking rule … is neither an essential attribute of the game itself nor an indispensable feature of tournament golf. The walking rule contained in petitioner’s hard cards is neither an essential attribute of the game itself nor an indispensable feature of tournament golf.

I think the bottom line here is to be skeptical of the Schwan ruling, particularly if your place of business is outside the jurisdiction of the 8th Circuit Court. Additionally, from the perspective of acceptable professional practice in I/O psychology and human resources management, it’s not a very good practice to make arbitrary determinations of what is necessary for you jobs. Always ask what would a job analysis “say.”

by Art Gutman Ph.D., Professor, Florida Institute of Technology

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