I have long admired Professor Michelle Travis’s work, but I was impressed all over again by her recent SSRN article, Disqualifying Universality Under the Americans with Disabilities Amendments Act, to be published in the Michigan State Law Review. There’s a lot to like in her piece, and I can’t begin to capture the entire article, but I do see a theme—“hidden in plain sight”—which I’ll try to sketch out here.
Professor Travis’s overarching argument is that the qualification question has become the emerging gatekeeper for ADA claims, threatening to replace the “disability” barrier that the courts erected and that Congress demolished with passage of the ADAAA. In a nutshell, because courts are putting the burden of persuasion on the employee to establish that she is a “qualified individual,” and that qualification requires an ability to perform the “essential functions” of the job, what is “essential” is often outcome determinative for ADA plaintiffs.
She’s not the first to notice this, of course, since Professor Travis builds on the empirical work of Steve Befort and Nicole Porter. But she makes several contributions, one of which is to trace the troop movements in the qualification counterrevolution. She does this by documenting the advice peddled by management law firms and human resources organizations in reaction to the ADAAA. That’s what I mean by hidden in plain sight: we all have seen individual examples of this, but I at least had no idea on how grand a scale or how effective this movement has become. A critical strategy is to advise employers to rewrite job descriptions to throw in the kitchen sink, that is, to include all possible functions as essential, including mental, not merely physical, functions; employers were also advised to frame environmental factors (such as tolerating excessive noise or high temperatures) as essential functions. The more comprehensive the list, the more likely a disabled individual will be unable to perform one or more of the items on it. (Although hopefully the Achilles heel of this strategy is the likelihood that others operating under the same job description aren’t performing the same tasks or under the same conditions.)
A second contribution of Professor Travis is in exploring how management attorneys have pushed the courts to give deference to employer job descriptions in deciding what is—and is not—essential. And more importantly, how much deference post-ADAAA lower courts have accorded them. Although the statute itself requires a court to give “consideration” to such descriptions, it does not require deference. Indeed, as Professor Travis makes clear, deference is contrary to the thrust of the ADA. Nevertheless, the article demonstrates that that is how job descriptions are being treated across a number of cases. Speaking of making the fox the keeper of the henhouse. Again, a phenomenon that I, at least, did not appreciate until I read Disqualifying Universality.
Professor Travis even reports several decisions that basically allow the employer to define an essential function as not being disabled! This is an extreme example of confusing the function—the tasks entailed in the position—with the qualifications of the employee in question, which leads to her third point. Building again on Nicole Porter’s work, she finds that the courts are conflating the function question with both employer norms about when and where the function is to be performed and with the employee’s qualifications to perform that function.
With respect to the former, defining a job as requiring an employee’s presence at a particular time and place means that an employee who can’t work a particular schedule is unqualified, and therefore not protected by the statute—regardless of whether he could perform the tasks involved from a distance. This is not exactly news, Professor Travis having dealt with this issue at length before, but recent events make it worth flagging. I refer specifically to EEOC v. Ford Motor Co., where the en banc Sixth Circuit just reversed a panel decision that challenged the prevailing wisdom that regular attendance was an essential function for all, or almost all, jobs
But the second conflation—the tendency of the courts to mischaracterize qualification standards as job functions—is a troubling development that went largely unnoticed in the literature before Professor Travis raised it. The statute requires that qualification standards be justified as a business necessity, but Professor Travis points out that this scrutiny can be avoided if what ought to be a qualification standard is instead viewed as an essential function. She cites several examples, one being a district court decision deferring to the employer’s job description by finding that lifting 40 pounds was an essential function. Had the court proceeded correctly, lifting would have been the essential function and the employer would have had to justify the 40-pound requirement as a qualification standard for that function. Instead, the employee in question was found unqualified without requiring the employer to show that the job required lifting such weights.
I could go on. Professor Travis has equally interesting things to say about the direct threat defense (you guessed it, not posing a threat to oneself or others is an essential function) and whether it makes any sense to require a regarded as plaintiff to prove that he or she is otherwise qualified (it doesn’t, even if the statute seems to so require). But I’ve written enough to suggest that this article is well worth the read for those interested in the future of the Americans with Disabilities Act.