• Changing Job Functions: Through an ADA Loophole, Into an EEOC Net?
  • October 14, 2010 | Author: Michael J. Soltis
  • Law Firm: Jackson Lewis LLP - Stamford Office
  • The EEOC this week sued a grocery store chain, claiming it had violated the ADA by firing an employee due to her 10 pound lifting restriction. The case is worth watching since it deals with an employer’s ability to change the essential functions of a job which results in terminating an individual who had been a qualified individual with a disability prior to the change, but was no longer so. 

    According to the EEOC’s press release. Kimberly McMillan-Goodwin, a gas station clerk, had successfully performed her duties with the lifting restriction for years. When she returned from a leave, the employer “claimed it had changed the position so that she could not longer perform her job with her long-standing restriction, and that it had no other positions she could perform.” The employer then placed her on a one year leave of absence, and terminated her at the end of that period, according to the press release.  In its Complaint, the EEOC alleges that McMillan-Kimberly was a “qualified individual with a disability ...and could perform the essential functions of the position from which she was removed.” Because theEEOC’s Complaint is pled so broadly, it is unclear whether the EEOC is alleging that McMillan-Kimberly could perform the essential functions of the changed position or that Woodman’s changed the job because of her lifting restriction, or some other theory.

    We have visited this issue before.Recall once again the incontinent court reporter, hired as a control room specialist, whose job changed when the chief judge required all court reporters to rotate through all courtrooms.  The Seventh Circuit affirmed summary judgment for the employer, holding that “an employer is not required to maintain an existing position or structure that, for legitimate reasons, it no longer believes is appropriate” and that the plaintiff was not a qualified individual with a disability for the changed position.  The EEOC’s 1992 Technical Assistance Manual recognizes that jobs may change: “The ADA does not limit an employer's ability to establish or change the content, nature, or functions of a job.”

    But recall also our post on the Workplace Prof Blog, which opined that an employer’s ability to change essential functions is an ADA “loophole.” “After the ADAAA’s expansion of the definition of ‘disabled,’ employers will be looking for more ways to avoid the accommodation duty. This one seems tailor-made: change job descriptions and thus, essentially, eliminate disabled employees from any jobs they want—and they won’t be held liable for disability discrimination!,” the Prof said.

    Neither the EEOC’s press release nor Complaint against Woodman’s indicate the reason Woodman’s changed McMillan-Goodwin’s job.    We will be watching this case for further judicial guidance on the “changed jobs” issue. But in the meantime, tread carefully when changing the essential functions of a disabled employee’s position which would result in that employee no longer being a qualified individual with a disability for the changed job.