Dive Brief:

• An employee's performance of his job duties controlled what defined the essential functions of the job, not the written job description, the 6th U.S. Circuit Court of Appeals has ruled (Gunter v. Bemis Co., Inc., No. 17-6144/6185 (6th Cir., Oct. 16, 2018).
• Tony Gunter sued Bemis Co., Inc., alleging that it violated the Americans With Disabilities Act (ADA) when it fired him because of doctor-imposed work restrictions stemming from an on-the-job injury to his shoulder. A jury ruled for Gunter and awarded him damages, some of which were reduced by the trial court. Both parties appealed.
• On appeal, Bemis argued, in part, that Gunter could not perform the essential functions of the job. Bemis also argued that Gunter could not establish his qualifications based on other employees helping with lifting heavy equipment. But, several witnesses testified that Gunter could do the job with the restrictions and that press workers often ask for and receive help with certain tasks. Although an employer’s job description provides evidence of a job’s essential functions, it is not dispositive, the court said, quoting its own 2014 opinion. "Gunter presented sufficient evidence to create a triable issue of fact over the essential job requirements of a press operator, making the final resolution one for the jury, not for us," the court concluded.

Dive Insight:

Written job descriptions can be important when the ADA comes into play, and experts regularly recommend that employers keep them accurate and up-to-date for that reason.

Still, a job description is only one of several factors courts consider in determining whether a stated function is essential to the job, said Jon Hyman, an attorney with Meyers, Roman, Freidberg & Lewis, writing about Gunter. Courts also will consider the employer's judgment; the amount of time spent performing the function; the consequences of not requiring the employee to perform the function; the terms of a collective bargaining agreement; the experience of former employees; and the work experience of employees in similar jobs, he noted.

Thus, Hyman said, just because an employer lists a function as "essential" in a job description doesn't mean that a court has to take its word for it; "If the other six factors show otherwise, then they will carry the day, and not your written job description."

However, job descriptions can help establish expectations for employees and also set a baseline for what you do, or do not, have to reasonably accommodate, Hyman cautioned. Some employers tie these to year-end performance reviews, having employees review, comment and sign off on them.