On December 13, 2013, the United States Court of Appeals for the Sixth Circuit partially reversed a district court’s grant of summary judgment for the Clare County Road Commission (CCRC) for terminating Wayne Henschel, an employee who alleged he had been terminated in violation of the Americans with Disabilities Act (ADA). The Sixth Circuit determined that there was a genuine issue of material fact as to whether Henschel could perform the essential functions of his position of employment as an excavator operator when terminated. Henschel v. Clare Cnty. Rd. Comm’n, 2013 BL 344465, 6th Cir., No. 13-1528 (December 13, 2013).
This case emphasizes the need for employers to be sure that any written job descriptions for employees are accurate and spell out specifically the essential functions of a job. When reversing the district court’s decision that granted summary jugement for the employer, a key component to the Sixth Circuit’s decision was that the essential job function that CCRC determined Henschel could not perform because of a disability was not a job function specifically listed in the written job description applicable to Henschel’s position as an excavator operator.
In this case, over the past decade preceding Henschel’s termination of employment, which occurred in 2010, there was evidence that the excavator operator hauled the excavator to a work site approximately 70 percent of the time, and other employees, often the semi-truck driver, hauled the excavator the other 30 percent of the time. A manual transmission vehicle was utilized to haul the excavator. Henschel had been employed in this position as an excavator operator since 2007. In August 2009, Henschel was involved in a motorcycle accident that resulted in the amputation of his left leg above the knee. He was off work for a few months recovering from his injuries, during which time he was fitted with a prosthetic leg. Thereafter, he contacted CCRC about returning to his position as an excavator operator, and he obtained a medical waiver for his commercial driver license, with the only limitation that he be limited to automatic transmission vehicles.
CCRC did not attempt to return Henschel to the excavator operator position. CCRC did consider returning Henschel to an automatic transmission blade truck position but ultimately did not do so and instead terminated Henschel from his employment. Henschel claimed that his termination violated the ADA, contending in part that hauling an excavator from job site to job site – which was the function of employment that he could not perform for CCRC as an excavator operator – was not an essential function of that position of employment.
When considering whether moving the excavator from job site to job site is an essential function of the excavator operator position, the Sixth Circuit noted that regulations accompanying the ADA provide seven non-exclusive factors for determining whether a particular function is essential:
- The employer’s judgment as to which functions are essential;
- Written job descriptions prepared before advertising or interviewing applicants for the job;
- The amount of time spent on the job performing the function;
- The consequences of not requiring the incumbent to perform the function;
- The terms of a collective bargaining agreement;
- The experience of past incumbents in the job; and/or
- The current work experience of incumbents in similar jobs.
29 C.F.R. § 1630.2(n)(3).
Here, the Sixth Circuit found important when reviewing the job descriptions created by CCRC that the duty of hauling equipment was assigned to the job description for the truck/tractor driver. Further, none of the three excavator operator job descriptions posted by CCRC since 2007 included hauling the excavator or driving a manual transmission. While the excavator operator job description did include “Other duties assigned” as a job duty, the Sixth Circuit noted that not every other duty is an essential function of the excavator operator position. For otherwise, the Sixth Circuit held, “[t]o reach that conclusion would make the various job descriptions meaningless. Essential functions are those that are fundamental to a particular position, not marginal functions.” The Sixth Circuit also considered evidence relating to the consequence to CCRC’s operations if an excavator operator was not required to move the excavator from job site to job site and concluded that there was evidence that it would be of minimal consequence to CCRC’s operations.
The Sixth Circuit’s decision to reverse the district court’s grant of summary judgment for CCRC, finding there to be a genuine issue of material fact regarding whether Henschel was qualified with or without accomodation to perform the essential functions of the excavator operator position, highlights the need for employers to be sure written job descriptions are up to date and outline the essential functions of a particular job. We recommend that employers review their written job descriptions and practices in this regard.