Employers Can Define the Essential Functions of the Job, But Must Be Able to Back It Up.

And employees must be qualified to perform those essential functions, as the U.S. Court of Appeals for the Eleventh Circuit recently held.

In Lewis v. Union Home Mortgage Corp., a loan officer suffered a stroke. Following his recovery, he worked as a loan officer for one company, CMS, then applied for a position with Union Home. He was not hired due to his inability to self-source business. He sued, alleging that the stated reason was a pretext for disability discrimination. Union Home argued that he was not qualified for the job because it requires loan officers to close three loans per month, while he had closed only two loans in the six months with CMS. In addition, after he was rejected by Union Home, he worked for another company where he closed only three loans in six months.

In order to establish an ADA claim of disability discrimination, individuals must show that they (1) are disabled, (2) are qualified, and (3) were discriminated against because of their disability. In order to be qualified, the individual must be able to perform the essential functions – or fundamental duties – of the job, with or without reasonable accommodation.

Whether a function is essential is determined on a case-by-case basis, and factors in that analysis include: (1) the employer’s judgment regarding which functions are essential; (2) the posted job descriptions; (3) the time spent on the job performing the function; (4) the consequences of not performing the function; (5) the terms of a collective bargaining agreement; (6) the work experience of past employees; and (7) the current work experience of employees in similar jobs. Moreover, as the Eleventh Circuit noted, “No matter how mistaken an employer may be, this court’s inquiry is limited to whether an employer gave an honest explanation of its behavior.”

Here, the Eleventh Circuit found that Union Home established, through the qualifications and output of their workforce, that self-sourcing is a key qualification. And it was clear that the loan officer was unable to meet that essential job function.

This case is useful in supporting the proposition that the employer does, in fact, have the ability to decide what job functions are essential – but that the decision must be a legitimate, good faith one that should be able to be demonstrated through the factors identified above.