Jessica Jansepar Ross, Esq. Guest Contributor and Rose Daly-Rooney, ACDL Legal Director

Whenever you are asked if you can do a job, tell ’em, ‘Certainly I can!’ Then get busy and find out how to do it.” –Theodore Roosevelt

If you are trying to see if a job is a good fit for you, the first place to look for information about how to do the job is the job description posted by the employer.

In a previous blog post, we identified the following three important questions to determine whether you are covered by the employment protections of the Americans with Disabilities Act (ADA) or Rehabilitation Act:

• Does the employee (or applicant) meet the ADA’s or Rehabilitation Act’s definition of disability?
• Is the employee (or applicant) qualified for the actual or desired job?
• Is the employer covered by the ADA or Rehabilitation Act?

The previous blog post addressed the first question. This blog post provides information, examples, and resources that relate to the second question, the definition of qualified.

Employees (or applicants) are qualified if they meet the legitimate skill, experience, education, or other requirements of the position that they hold or seek, and can perform the essential functions of the job with or without reasonable accommodation. To put it simply, qualification standards are the qualities you must possess, while the essential functions are the tasks, work and duties that you must actually perform in the job.

Step 1: Satisfying the minimum qualification standards.

The first step of proving that you are qualified is to show that you can satisfy all of the lawful minimum job requirements.

An employer may lawfully reject applicants if they do not meet the minimum job qualifications. Consider the example of Josie. Josie, a person with low vision, is not hired for a computer programming job. If the position Josie applied for required a Master’s degree and the highest level of education Josie has earned is a Bachelor’s degree, then she is not qualified for the position. If, on the other hand, a Master’s degree is preferred and the employer considers other candidates with Bachelor’s degree, then Josie does meet the minimum job qualification standards.

Other typical qualification standards may include: having a specific number of years of similar prior experience; possessing a high school diploma or GED; holding a specific license; being in good standing with all licensure requirements, such as continuing education; being bilingual; or completing a particular trade or industry course.

Some qualification standards may be unlawful if they screen or tend to screen out people with disabilities unless those qualification standards are related to the specific job and based on legitimate business interest.  Here are two examples where job qualification standards may unnecessarily screen or tend to screen out people with disabilities:

• a requirement that applicants possess a driver’s license because it screens out people who are blind and tends to screen out people with epilepsy; and
• a standard that a person be able to see, hear or speak, because it screens out people who are blind or deaf and tends to screen out persons with a variety of speech-related disabilities.

Is a driver’s license necessary for the specific job? Often times, jobs require people to travel to different locations once they arrive at the worksite but do not actually require that the individual drive themselves. A social worker may work in his office where he counsels clients and travels to outpatient clinics to lead group therapy visits.  However, he could use public or private transportation to travel to the clinic. In that case, possessing a driver’s license will likely not be job-related and based on a legitimate business interest.  Compare that situation to a limousine driver, in which possessing the required driver’s license is a qualification standard even though it screens out people who are blind and tends to screen out people with epilepsy.

Sometimes, employers impose physical qualifications, such as the ability to hear, that unnecessarily screen out people with disabilities who can perform the job.  Take this real-life example.  In Keith v. County of Oakland, Keith, a young man who is deaf, applied to be a lifeguard.  When he went to his post-offer medical examination, the county’s occupational health physician entered the examination room and briefly reviewed Keith’s file, and allegedly said, “He’s deaf; he can’t be a lifeguard.”  A lower court dismissed Keith’s lawsuit before he could go to trial. In 2013, the Sixth Circuit Court of Appeals reversed the lower court’s decision and determined there was enough evidence for Keith to go to trial.  The Sixth Circuit noted that the evidence showed that lifeguards don’t use hearing to identify distressed swimmers. Generally, they adhere to a purely visual scanning methods to identify distressed swimmers.  In fact, Keith’s expert testified that “the world record for most lives saved [was at the time of the case] held by a deaf man, Leroy Colombo, who saved over 900 lives in his lifeguarding career.”

Individuals only need be able to satisfy lawful qualification standards that do not unnecessarily screen or tend to screen out people with disabilities to be protected by the ADA.

Step 2: Performing the essential functions with or without reasonable accommodations.

The second step in proving that you are qualified is to be able to perform the essential job functions with or without reasonable accommodations. Note however, that you are qualified even if you can’t perform a marginal job function because employers may exchange or reallocate marginal job duties to other employees.  So, key to being qualified is performing those functions that are essential or fundamental to the job.

How do you know if a job function is essential?  The EEOC rules offer examples of when a job function might be considered essential.

1) The reason the job exists is to perform that function.

2) Only a few employees perform the job function.

3) The function is so highly specialized that the employer hires people with the expertise or ability to perform the specific function.

For example, processing incoming calls is an essential function of the telemarketing customer service representative.

The EEOC rules list the following factors to consider when determining whether a job function is essential:

• the duties that the employer, in their judgment, identify as essential in a written job description posted before hiring begins,
• whether the position exists to perform that function,
• the experience of employees who actually hold that position,
• the time spent performing the function,
• the consequences of not performing the function,
• whether other employees are available to perform the function, and
• the degree of expertise or skill required to perform the function.

For example, an art gallery may hire people with expertise and experience evaluating the authenticity and value of art before buying them. The job duties associated with appraising art will be essential job duties.  A retail store employer’s job description may require a sales clerk to lift up to 40 lbs.  However, the retail store sells cards, gifts, souvenirs and food items, none of which weigh more than 20 lbs.  There are dollies and hand trucks to move stock to the front of the store to unpack.  The sales clerks who have worked in this position and become managers and the sales clerks on other shifts have not been required to lift more than 20-30 lbs. Lifting 40 lbs. is not an essential job function in this situation.

If you can’t perform an essential function because of your disability, you need to consider whether you can perform the job function with a reasonable accommodation.  If so, you need to ask your employer for a reasonable accommodation and share ideas of possible accommodations. You are qualified if you can perform the essential functions whether or not you need a reasonable accommodation.

A Note on Reasonable Accommodations

According to an EEOC guide, generally “an accommodation is any change in the work environment or in the way things are customarily done that enables an individual with a disability to enjoy equal employment opportunities.”  There are three types of reasonable accommodations:

• Modifications or adjustments that enable a qualified individual with a disability to perform the essential job functions;
• Modifications or adjustments that allow an applicant to have an equal employment opportunity in the selection process; or
• Modifications or adjustments that enable an employee with a disability to enjoy equal benefits and privileges of employment as enjoyed by non-disabled employees.

Watch for future blog posts in this series that will provide you with more information, resources, and strategies about workplace reasonable accommodations.  In the meantime, you can get a head start on learning all about reasonable accommodations by checking out the Job Accommodation Network (JAN).

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