by Leigh Anne Benedic
The U.S. 6th Circuit Court of Appeals—which covers Kentucky, Michigan, Ohio and Tennessee—recently ruled that summary judgment (pretrial dismissal) in favor of an employer was inappropriate because the employer failed to include an essential job function in the employee's written job description.
Wayne Henschel was employed by the Clare County (Michigan) Road Commission (CCRC) as an excavator operator. His employment was covered by a collective bargaining agreement (CBA), and his duties included running an excavator, which digs ditches and trenches. The machine was delivered to worksites on a trailer pulled by a semitruck.
Henschel hauled the excavator to worksites approximately 70% of the time. The rest of the time, a driver or another qualified CCRC employee drove the truck. The excavator stayed at a site until the job was completed 90% of the time.
A few years after Henschel was hired, he was involved in a motorcycle accident that resulted in his left leg being amputated above the knee. He was fitted with a prosthetic leg but was unable to operate a manual transmission, which affected his ability to haul the excavator to worksites because the CCRC's semitrucks had manual transmissions.
Although the CCRC determined that the hauling function was essential, it was not included in Henschel's written job description. However, it was part of the written job description for semitruck drivers.
The CCRC declined to return Henschel to his excavator operator position because of his inability to haul the excavator with a semitruck. The employer did not explore other ways of delivering the excavator, including asking a driver or another qualified employee to deliver it 100% of the time.
The CCRC attempted to provide a reasonable accommodation by reassigning Henschel to a position driving a blade truck with an automatic transmission. There were no vacancies at the time, so the CCRC asked for a volunteer who was willing to give up his position. The plan was initially approved by the union.
However, the CCRC determined, without advising the union or the volunteers, that whoever agreed to give up his job would be demoted to a laborer position, which was a violation of the CBA. Upon learning that a CBA violation might occur, the union withdrew its support, and the two employees who had volunteered changed their minds.
Henschel's employment was terminated because of his inability to haul the excavator with a semitruck and the CCRC's inability to assign him to a blade truck driver position. Henschel filed suit in the U.S. District Court for the Eastern District of Michigan, which granted the employer's request for summary judgment. The court relied on the employer's determination that the hauling duty was an essential job function. Henschel appealed to the 6th Circuit.
6th Circuit's analysis
The 6th Circuit focused on whether the hauling function was truly essential to the excavator operator position by considering the seven factors in the Americans with Disabilities Act's (ADA) regulations. Those factors include:
- The employer's judgment on which functions are essential;
- Written job descriptions that were prepared before advertising the job or interviewing applicants;
- The amount of time spent performing the function;
- The consequences of not requiring the employee to perform the function
- The terms of the CBA;
- The experience of past incumbents in the job; and
- The work experience of employees currently in similar jobs.
The court stressed that the CCRC's opinion that hauling the excavator was an essential function "carries weight but is only one factor to be considered." Weighing against the CCRC's opinion was the fact that the excavator operator job description failed to mention hauling duties at all. In addition, the court noted that the job description for semitruck drivers included the hauling duties the CCRC claimed were essential for excavator operators.
The excavator operator job description included a catch-all provision of "anything from any other [job] categories." However, the court noted, "Not every other duty under every other job category is an essential function of the excavator operator position. To reach that conclusion would make … job descriptions meaningless."
The 6th Circuit found that other factors weighed against the CCRC's opinion as well. The amount of time Henschel spent hauling the excavator appeared to be limited, there was evidence that asking other employees to haul the excavator would have had a minimal impact on the CCRC's operations, and other employees testified that they would have been willing to haul the excavator and had done so frequently in the past.
As a result, the appellate court reversed the lower court's dismissal of Henschel's claims, finding there were factual issues about whether the hauling duty was essential. However, the court noted that the CCRC's attempt to accommodate Henschel's disability by creating a position and potentially violating the CBA was not required by the ADA. The court found in the employer's favor on that issue. Henschel v. Clare County Road Comm'n, 737 F.3d 1017 (6th Cir., 2013).
Written job descriptions that accurately reflect essential job functions are critical to managing the reasonable accommodation process and defending against disability discrimination or failure-to-accommodate claims. Inconsistencies between job descriptions and the duties performed on a daily basis can undermine an employer's assertion that a function is essential.
Furthermore, "catch-all" provisions will not remedy an otherwise deficient job description. Job descriptions should be regularly reviewed by supervisors and employees to ensure accuracy and avoid battles about which functions are truly essential.
The author can be reached at firstname.lastname@example.org or 614-227-2014.