Changing a job's "essential functions" - ADA loophole or sinkhole?

Ask Woodman’s Food Markets this question and you’ll probably get a resounding “sinkhole.” The Janesville, Wisconsin-based grocery store chain is being sued by the Equal Employment Opportunity Commission (EEOC) for firing a disabled employee who was restricted from lifting more than 10 pounds.

The snag is this: Kimberly McMillan-Goodwin successfully performed the job for years with the lifting restriction. But when she returned from an absence due to injuries in a car accident, she was placed on a one-year leave and then terminated. The company’s explanation? It changed the position, making McMillan-Goodwin no longer able to perform her job with the long-standing restriction. Plus, the company claimed it had no other positions to offer her.

While we don’t know the outcome of the lawsuit yet, the case deserves our attention because it pertains to whether an employer can change the essential functions of a job under the ADA and in turn, fire a disabled individual who was previously qualified. There is a fear that for particularly crafty employers, this could serve as a legal loophole, allowing them to sidestep the accommodation duty under the ADAAA’s expanded definition of “disabled.” Simply change the job description to shut out disabled candidates or existing employees who no longer meet the job’s requirements.

The EEOC’s position in the”changed jobs” case is more clear-cut. “It is unfortunate that some managers still act as if it’s acceptable to deny jobs to people who are ready and able to work, simply because of a disability – especially when the people they put on the street have a history of
long, loyal successful performance,” says John Hendrickson, regional attorney for the EEOC’s Chicago District. “It really runs against most people’s sense of fundamental fairness and, beyond that, it violates federal law.” (eeoc.gov)

October is National Disability Employment Awareness Month. In its support for disabled employees, the DOL’s Office of Disability Employment Policy (ODEP) is promoting the message:

“Talent has no boundaries – Workplace diversity includes people with disabilities.”

Are you doing your part to open doors when hiring and promoting workers with disabilities? Just as important, are your workplace policies in sync with last year’s amendments to the ADA, including making reasonable accommodations for qualified individuals?

Changing a job's "essential functions" - ADA loophole or sinkhole?