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 Department of Human Resources & Equal Opportunity

Workers' Comp

Job Description

A Guide to Writing Job Descriptions*

* Adapted from College and University Personnel Association (CUPA) Manual Appendix A: Job Descriptions

Several basic points are relevant to the process of identifying essential functions. To take a basic example, many job descriptions of even entry-level service positions frequently include a requirement that the employee be able to follow written and oral instructions. However, a rejected applicant or employee could challenge this criterion on either impact grounds (screening out a single person with a disability on the basis of the disability) or on reasonable accommodation grounds. This neutral qualification standard would tend to exclude individuals with dyslexia who have problems reading and others with learning disabilities, hearing impairments, and some persons with visual impairment.

An employer that used this standard to reject an individual with a disability because of his or her inability to understand both written and oral instructions would have to demonstrate that this qualification standard was job related and consistent with business necessity. The same type of analysis can be applied to any selection criterion.

The Equal Employment Opportunity Commission (EEOC) acknowledges that the use of selection criteria that are related to an "essential function" of the job may be consistent with business necessity but not if an individual with a disability can satisfy the criteria with the provision of a reasonable accommodation. Certainly the ability to understand instructions is an essential function. The first problem, therefore, is to determine whether the individual can understand instructions with the use of reasonable accommodations, and then decide whether ability to understand both written and oral instructions is essential.

An applicant with dyslexia may be able to perform the functions of the job if he or she is given oral instructions, or on the rare occasions where instructions are in writing, a co-worker might be able to read those instructions. An applicant with a hearing disability may be able to follow written instructions or, through the use of an interpreter, follow oral instructions. An applicant with a visual disability may be able to understand oral instructions or, through the use of reasonable accommodations, have written instructions translated into braille or raised lettering so that the applicant could read them. To the extent that the employer can show that both written and oral instructions must be followed it must demonstrate that the foregoing accommodations are not reasonable accommodations. The applicant would be considered "qualified" if, with some accommodation, he or she could perform all of the essential functions of the job. The EEOC would take the position that this is an ordinary reasonable accommodation/undue hardship problem. The EEOC says that based upon its review of Rehabilitation Act cases, most challenges to selection criteria are in fact often resolved by reasonable accommodations.

What if the position requires that the individual be able to hear oral instructions because of the nature of the job, health and safety considerations, or the fact that it would be impractical (if not impossible) to have an interpreter on hand at all times for those special circumstances? One example would be the position of a flight attendant. A pilot wishing to communicate information to a flight attendant may not have the time to employ an interpreter. This is an example where non-economic considerations that are relevant to "undue hardship" overlap with health and safety defenses and the general concept of business necessity. The requirement that a flight attendant be able to hear oral instructions unassisted would be an essential function of that job. In a campus environment, colleges and universities might be able to require members of the grounds crew working around heavy equipment to be able to hear beeping tones if modifications (such as flashing lights) could not reduce the risk of injury to below the "direct threat" level. If so, a certain level of hearing would be an ability necessary to performing job duties safely around heavy equipment.

How do the theories of discrimination affect the job description process? The way in which an employer characterizes the essential functions of the job may influence the outcome of later litigation. In our flight attendant example, the employer might wish to identify the essential function as "responds to verbal instructions communicated from a captain or other flight attendants, when not in a physical position to communicate through sign language, and immediately carries out those instructions in emergency situations." This degree of specificity of an essential function in a job description would likely support a selection criteria that applicants have the ability to hear instructions communicated at a certain decibel level, without assistance. The effectiveness of hearing aids would have to be given special consideration because of the safety risks.

What are the Essential Functions of a Job?

The essential functions of a job are those functions that an individual who holds the position must be able to perform unaided or with a reasonable accommodation. The basic EEOC definition is that the term essential functions means "the fundamental job duties" of the employment position as contrasted with "the marginal functions of the position." The regulation provides that a job function may be considered essential for many reasons, including but not limited to:

* The reason the position exists is to perform that function,

* There are a limited number of employees available among whom performance of that job function can be distributed, and/or

* The function is highly specialized so that the incumbent in the position is hired for his or her expertise or ability to perform the particular function.

The EEOC advises that any inquiry into whether a particular function is essential should first focus on whether the employer actually requires current or prior employees in the position to perform those functions. For example, an employer might state or a job description might provide that typing is an essential function of a position. If in fact the employer has never required any employee in that particular position to type, that is evidence that typing is not an essential function of that position. Conversely, a job description might omit a function that in fact is regularly performed by incumbents and is expected of all persons in the position. The fact that it was not included in the job description is not critical, but it certainly does not help the employer's case. Examples:

* If an employee spends the majority of his or her time entering data, then entering data is clearly an essential function of the job.
* If an employer never requires security personnel to perform maintenance duties, such a task would not be considered essential.
* If an individual is hired to catalogue new library materials received each week, the ability to catalogue materials would be an essential job function, since this is the only reason the position exists.

Duties Fundamental to the Job

If the incumbent or a predecessor in a position is or has been required to perform a function, the EEOC says courts must then inquire whether removing the function would fundamentally alter the position. If an individual is hired to patrol facilities, the ability to observe illicit activity and be mobile are essential functions since this is the only reason the position exists. Removing those functions for a person with vision or mobility impairments would fundamentally alter the job.

Any task that is performed more than ten percent of the time would likely be considered essential. However, the EEOC explains that the percentage of time a task is required is not the only factor considered. The EEOC uses two examples that are important: a pilot may only spend a small percentage of the time landing airplanes and a firefighter may only rarely be required to carry a person unassisted from a burning building, but those are essential tasks if there is no one else available to perform them. Similarly, a security guard may only spend five percent of his or her time chasing suspects, but the ability to do so is an essential function of a security guard position.

The number of employees available to perform the job function, or among whom performance of the job function can be distributed, is also significant because employers may be required to restructure jobs and redistribute non-essential job duties to other employees as a reasonable accommodation. If an employer has a relatively small number of employees for the volume of work to be performed, functions that might not be essential if there were a larger staff may become essential at that particular site or during particular periods. For example, there may be times when a clerical position in an administrative office is also required to perform the job functions of a receptionist.

There will be situations in which a person with a disability can perform most but not all of the normal functions of a position, but there are no other individuals who can perform these tasks. Conversely, there may be periods of high volume that might require that each employee be able to perform a multitude of tasks. The EEOC recognizes that where there is an ebb and flow of work, employers are more limited in reorganizing their procedures or job functions during peak periods, and infrequently used skills may be essential.

Special Expertise

The degree of expertise or skill required to perform the function is also a relevant factor. In professional or highly skilled positions, the employee is hired for his or her expertise to perform a specialized task, such as a media relations specialist, an accountant, or a professor.

Evidence of Essential Functions

There is no single piece of evidence that is conclusive as to whether a particular function is essential to a particular position. Examples of evidence as to what functions are essential for a position include:

1. The employer's judgment as to which functions are essential;

2. Written job descriptions prepared before advertising or interviewing applicants for the job;

3. The amount of time spent on the job performing the functions;

4. The consequences of not requiring the incumbent to perform the functions;

5. The terms of a collective bargaining agreement;

6. The work experience of past incumbents in the job; and/or

7. The current work experience of incumbents in similar jobs.

One item on the EEOC's list is a form of documentary proof that will make it easier for an employer to defend itself against charges that it created an "essential function" after the fact in order to defend itself in a lawsuit--written job descriptions prepared before advertising or interviewing applicants for a job. While a written job description is not conclusive proof if it is contradicted by other evidence of what the job required, and while some employers may be hurt by poorly drafted job descriptions that omit essential functions, a carefully drafted, comprehensive job description is perhaps the best piece of documentary evidence to submit to a court identifying the essential functions of the job.

At the same time, an outdated or incomplete job description may be worse than none at all. If employers have yet to complete their review of essential functions, they should seriously consider rescinding or withdrawing for use all unreviewed job descriptions and instructing supervisors not to use these descriptions. A description that omits essential functions or contains indefensible criteria may create more of a risk than telling supervisors that the organization is conducting a review of job criteria and that all decisions regarding persons with disabilities need to be reviewed by the ADA compliance officer.

Essential Functions and Performance Standards

Employers often distinguish the duties or functions of a job from the proficiency, speed, or quality with which those duties and functions are to be performed. One commonly used type of job description combines these concepts and lists standards against which performance of the task will be measured. Other employers separate job descriptions that identify tasks from the setting of objectives and the evaluation of performance against objectives. For example, in the not so distant past before word processors and "spell check," job descriptions for clerical positions frequently specified that a person in the position must be able to type 75 words per minute with two spelling or typing errors or less per page. The essential function of that job is typing and the ability to type at a certain rate with a certain level of accuracy (quality) is a production or a performance standard for that function. The EEOC's guidance at times combines these concepts and refers, for example, to the essential function of performing tasks at a particular speed.

Performance standards, including production and quality standards, are normally considered evaluation criteria. They would be linked to essential job functions but would not usually be included as part of the "definition" of a job. In fact, performance standards might not even appear on a job description unless this form was also used for performance evaluation. However, performance standards can legitimately be included as part of the "task" or essential function if it is the minimum performance required of persons in that job. Levels of performance above the minimum would then be used as evaluation criteria.

If an employer is going to rely on the ability to perform a task at a certain speed or with a certain level of quality as a selection criterion, the employer needs to make the measurement of this criterion as objective as possible and then ensure uniformity in treatment between disabled and non-disabled employees.

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Last modified on 12/07/16 01:09 PM
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