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Employment Law Blog
James Tarquin, P.A
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Can An Employer Refuse To Hire A Person With A Disability Based On Its Assertion Of What Constitutes The Essential Functions Of A Position?

white notepad that reads ADA

Under the Americans with Disabilities Act (ADA), employees are protected from discrimination when they have an actual disability or are perceived as having a disability within the meaning of the ADA.  The ADA defines “disability” as “a physical or mental impairment that substantially limits one or more major life activities of an individual.”  However, the ADA imposes a condition on what type of discrimination it prohibits:  it forbids discrimination against a “qualified” individual with a disability. 

The phrase a “qualified individual with a disability” is defined by the ADA, in relevant part, as “an individual with a disability who, with or without a reasonable accommodation, can perform the essential functions of the position that such individual holds or desires.”  Thus, in order to establish that he or she is a “qualified individual with a disability” and to successfully establish an ADA discrimination claim, the individual must be able to perform the essential functions of the position held or desired, with or without a reasonable accommodation.  Stated another way, if an individual cannot establish that he or she is able to “perform the essential functions of the position held or desired, with or without a reasonable accommodation,” then he or she is not a qualified individual with a disability and is not protected by the ADA.

Having litigated disability discrimination cases for almost twenty years, our Citrus County, Florida disability discrimination attorneys have learned that employers frequently refuse to hire individuals who have a disability within the meaning of the ADA.  In doing so, employers frequently manipulate the essential functions of the position desired by the job applicant in order to manufacture the argument that the individual is not a “qualified individual with a disability because he or she is unable to perform the essential functions of the position.  As employers inherently possess the ability to define what functions allegedly constitute the essential functions of a position, courts are often unable, if not unwilling, to recognize when an employer is manipulating the essential functions of a position in order to claim that the individual is not a “qualified individual with a disability.” 

Essential Function:  One Arm Or Two Arms For Lifting?

The decision U.S. District Court for the Eastern District of Michigan in Evangelista v. Auto-Wares, LLC, No. 14-12569 (E.D. Mich. 2016) is instructive in showing that not all courts are willing to simply accept, if not blindly rubberstamp, an employer’s purported good faith declaration of what constitutes an essential function of a position.  In that case, Darryl Davis (Davis) claimed that Auto-Wares, LLC (Auto-Wares) failed to hire him on the basis of disability in violation of the ADA.

Davis applied for a job as a delivery driver with Auto-Wares.  At that time, Davis was suffering from end-stage renal disease and was undergoing regular dialysis treatments.  A dialysis port had been surgically implanted into his right arm.  As a result of the port, Davis’ doctors prohibited him from lifting more than 20 pounds with his right arm. The lifting restriction did not apply to his left arm.  Even though Davis could lift only twenty pounds with his right arm, he could lift up to fifty pounds using both arms together.  The job positing for the delivery driver position said that applicants needed to be able to lift up to fifty pounds.  Davis considered himself qualified for the position because, despite the 20 pound lifting restriction to his right arm, he was able to lift a total of fifty pounds using both arms.

After interviewing for the position, Auto-Wares sent Davis for a pre-employment physical examination.  The examiner noted Davis’ right-arm lifting restriction, but nonetheless found that Davis was physically able to perform the delivery driver position.  However, Auto-Wares’ Vice-President of Human Relations, an employee named Schumacher, determined that Davis’ right-arm lifting restriction precluded him from performing the required duties of the delivery driver position.  Based upon that determination, Schumacher decided that Auto-Wares would not hire Davis for the position.

Evidence Undermines Employer’s Essential Function Assertion

Auto-Wares moved for dismissal of Davis’ disability discrimination claim.  In doing so, Auto-Wares claimed that Davis was not a qualified individual with a disability because he was unable to perform the essential functions of the delivery driver position.  In support of this argument, Auto-Wares asserted that a delivery driver must be able to lift the fifty-pound total while equally distributing the weight among both arms.  Having represented that the ability to lift fifty pounds with both arms equally was an essential function of the position, Auto-Wares then maintained that because he could not lift more than twenty pounds with his right arm, Davis was unable to perform the essential functions of the delivery driver position and thus was not entitled to ADA protection.

In denying Auto-Wares’ motion for dismissal, the trial court observed that Davis had “presented very persuasive evidence that the ability to lift fifty pounds equally with both arms is not an essential function of the delivery driver position.”  This evidence, according to the trial court, included the fact that Auto-Wares’ job description for the position stated that an applicant must be able to lift “large items of up to 50lbs” and “says nothing about the ability to lift the specified weight equally with both arms.”  This evidence, the trail court determined, also included the fact that the medical review ordered by Auto-Wares concluded that Davis was “able to perform the essential functions of the delivery driver position.” 

The trial court further found that “Davis’ examination of Schumacher during her deposition raised serious questions about whether Schumacher had any reasonable basis for concluding that Davis could not do the job.”  Thus, the trial court concluded, because Davis had presented evidence establishing that the ability to lift fifty pounds with both arms equally was not an essential function of the delivery driver position, it was for a jury to decide whether Davis was able to perform the essential functions of the delivery driver position, with or without reasonable accommodation.

Free Consultation With Citrus County Disability Discrimination Lawyers   

Based in Ocala, Florida and representing employees throughout Central Florida, we have extensive experience representing employees who have been subjected to discrimination because of their disability.  If you have been the victim of disability discrimination or have questions about not being hired on the basis of a disability, please contact our office for a free consultation with our Citrus County, Florida disability discrimination attorneys.  Our employee rights law firm takes disability discrimination and harassment cases on a contingency fee basis.  This means that there are no attorney’s fees incurred unless there is a recovery and our attorney’s fees come solely from the monetary award that you recover. 

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