In Camp v. Bi-Lo, decided October 21, 2016 [2016 U.S. App. LEXIS 19053] by the 6th Circuit, Kenneth Camp worked for Bi-Lo as a grocery stocker for 38 years even though he had a bad back (due to scoliosis) the entire time. He worked the night shift with two other stockers, and there was an informal arrangement with his co-workers that they help him with extremely heavy packages. One night, the stocking work was not completed because of the help required by Camp and he was ordered by Bi-Lo to have a medical exam. He was placed on light duty pending the outcome of the exam. The doctor concluded that Camp can lift 10 pounds all the time, 35 pounds frequently, but never more than 35 pounds. Bi-Lo altered the existing job description to include lifting 60 pounds as an essential job function. Thus, the major question in this case is whether lifting 60 pounds is essential to the job of stocker and, if so, how to prove it.
A second question deals with age discrimination. Based upon the doctor’s report, Camp was told to use up his sick leave days as doing so would allow him to receive his salary until he turned 62 and was eligible for Social Security payments. This prompted Camp to also file an age discrimination (ADEA) charge.
The district court granted summary judgement to Bi-Lo on both charges, and a 2-1 majority of the 6th Circuit overturned both rulings. The age question is of interest, to be sure. It is questionable whether an employer can legally use age as a basis for deciding the time frame with respect to light duty assignment and use of sick leave time. That said, my major concern is with the ADA ruling because, if left to stand, it would permit an employer to define itself out of the ADA by claiming marginal functions are essential functions as a pretext for disability discrimination.
A key to this case was the testimony of Bi-Lo’s human resources specialist Ray Kessler. Kesller admitted he relied chiefly on the written job description (with the 60 pound requirement) and never discussed the issue with Camp or any of his co-workers. For their part, two co-workers testified that they had never seen the at-issue job description. They (and others) also testified that lifting more than 35 pounds was not an essential requirement for the job. Therefore, the majority Judges (Merritt and Kethledge) ruled:
"There is no evidence in the record of what the job description was for "stock clerk" in 1974 when Camp was first hired. Camp and his two coworkers on the third shift testified that they had never seen a job description for stock clerk before this litigation. It appears that Bi-Lo looked only to the job description to render its opinion that heavy lifting was an "essential function" of the stock clerk position."
The majority also ruled that even if lifting 60 pounds was essential to the job, Bi-Lo failed to consider reasonable accommodations both generally, and in the form in which Camp’s co-workers had help him over the years.
The dissenting judge (Rogers) opined that allowing co-workers to informally cover for Camp does not justify “forcing an employer to continue such an accommodation” once the disability “is found to interfere with operations.”
To me, the moral of the story is that whether a requirement is essential is question of fact open to assessment via job analysis. Employers need to be careful to ensure that they are not treating marginal job duties as being essential.
By Art Gutman, Ph.D., Professor, Florida Institute of Technology
