Compliance with the Americans with Disabilities Act of 1990 (ADA) is a fact of life for all covered employers. The law requires nothing less than a top to bottom review of a company’s employment policies and procedures. Human resource managers agree that the effort must be programmatic and coordinated company-wide. Where does the methodical road to ADA compliance begin? The core of every successful compliance program is a complete and updated written job description for every position maintained by an employer.
The Importance of Written Job Descriptions
Why are written job descriptions so critical? Interestingly, neither the ADA nor its implementing regulations administered by the Equal Employment Opportunity Commission (EEOC) require a covered employer to develop written job descriptions. Instead, the law prohibits a covered employer from discriminating in employment matters against a qualified individual with a disability because of the disability.
“Qualified individual with a disability” is a term of art under the ADA. It means an individual with a disability who, with or without reasonable accommodation, can perform the essential functions of the employment position that the individual holds or desires to hold. Thus, only by identifying the essential functions of a given position will an employer know whether someone is a qualified individual with a disability and which reasonable accommodations might be appropriate.
What are Essential Functions?
The ADA itself does not define the term “essential functions.” However, the ADA regulations clarify that a job function may be considered essential for any of several reasons, including:
Because the reason the position exists is to perform that function;
Because of the limited number of employees available among whom the performance of that job function can be distributed; and/or
The function may be highly specialized so that the incumbent in the position is hired for his or her expertise or ability to perform the particular function.
The ADA recognizes that the employer is usually in the best position to evaluate the essential functions of a job. The regulations specifically provide that the employer’s judgment and written job descriptions prepared before advertising or interviewing applicants for the job are evidence of whether a particular function is essential. Note that the employer’s judgment is not conclusive on this issue; it is evidence. The EEOC in an enforcement action, or a court in a discrimination action, will carefully review the reasonableness of the employer’s judgment. The employer will want to demonstrate its good faith efforts to examine and update its employee practices in light of the ADA.