The Tenth Circuit recently affirmed an employer’s creation and enforcement of potentially discriminatory employment polices on the grounds that the policies in question were sufficiently job related and business necessary. This ruling demonstrates the importance of well crafted and reasoned employment policies and the importance of engaging in a good faith attempt to identify reasonable accommodations when an employee complains of the effect of a new policy or revisions to existing policies.
Summary: In Hennagir v. Utah Department of Corrections, No. 08-4087 (10th Cir. Sept. 10, 2009), the Tenth Circuit affirmed summary judgment for the employer of an Americans with Disabilities Act lawsuit filed by a physician’s assistant who claimed the enforcement of a newly created employment policy discriminated against her. The Court held that a job function that is rarely required in the normal course of an employee’s duties may nonetheless be an essential job function under the ADA when the potential consequences of employing an individual who is unable to perform the function are sufficiently severe.
Background: Barbara Hennagir worked as a physician’s assistant at the Utah Department of Corrections (“DOC”) facility located in Gunnison, Utah from April 1997 through August 2005. In 2001, the DOC required all medical staff that interacted with the inmate population to be trained and certified through the Police Officers Standards and Training program (“POST”), due in large part to the assault of a medical employee by an inmate. Because Hennagir’s position required daily contact with prison inmates, she reported to POST training. However, Hennagir, who suffers from several autoimmune disorders including fibromyalgia and lupus, did not take the physical test and was not POST certified as a result.
In 2003, the DOC notified Hennagir that she could not remain in her position because she was not certified. The DOC offered to allow her to transfer to a mental health facility in Draper, Utah where POST certification was not required. As the Draper facility was 80 miles from her home, Hennagir refused the transfer and requested an exception to the certification rule, claiming that such an exception would be a reasonable accommodation of her disabilities. After considering the request, the DOC refused to grant an exception to the certification requirement and Hennagir commenced grievance procedures internally and with the EEOC.
Analysis:
The Court based its ruling on the second prong of a plaintiff’s burden of proof to succeed on an ADA claim, namely a showing that she is qualified to perform the essential functions of the job with or without reasonable accommodations. Kellogg v. Energy Safety Servs., Inc., 544 F.3d 1121, 1124 (10th Cir. 2008). As Hennagir could not perform one essential function of her job -- POST certification, the DOC’s decision to terminate her employment was ultimately proper.
The Court highlighted the fact that an employer has the authority to define what functions are required to perform a job, and a particular standard set by an employer will not be deemed to discriminate against disabled persons so long as it is job related and consistent with business necessity. Among those considerations when determining whether a job duty constitutes an essential function, the Court relied heavily on the employer’s judgment as to which functions are essential and the consequences of not requiring the employee to perform the function in question. Hennagir at 9 (citing 29 C.F.R. § 1630.2(n)(3)).
Further, the ADA does not limit an employer’s ability to establish or change the essential functions of a job. Here, the Court determined that the DOC had every right to change its policies to require its medical staff to be POST certified. “[T]he risks involved in direct inmate contact strike at the heart of another factor used to determine whether a job function is essential: the consequences of not requiring an employee to perform the function. Hennagir at 11 (citing 29 C.F.R. § 1630.2(n)(3)(iv).
Given the severe risks involved, the Court found that POST certification was an essential function of the physician assistant position, rejecting Hennagir’s argument that the threat of an inmate attack was so remote as to render certification a non-essential duty.
The Court went on to discuss the availability of a reasonable accommodation that would allow Hennagir to remain employed by the DOC. Notably, the Court ruled that the DOC was not required to waive the POST certification requirement as a reasonable accommodation for Hennagir. The idea of a reasonable accommodation is to find a way that the employee can do all of the essential duties of the job. Id. at 15. “[A]n employer is not required to accommodate a disabled worker by modifying or eliminating an essential function of the job. Id. (citing Mathews v. Denver Post, 263 F.3d 1164, 1168 (10th Cir. 2001). A key factor was Hennagir’s rejection of several accommodations offered by the DOC. Her refusal to accept proffered accommodations and insistence on wavier of the certification requirement undermined her claims that the DOC failed to engage in a good faith discussion of what accommodations might be available.
Conclusion:
Hennagir underscores how important it is for employers to be able to articulate a legitimate basis for their job descriptions and employee duties. The fact that an employee may not fulfill a particular duty on a regular basis does not automatically render that duty non-essential as long as the employer can articulate business necessity demonstrating the essential nature of the duty. This case also demonstrates the value of negotiating in good faith with employees who request reasonable accommodations. Even though the employer here did not grant the particular accommodation the employee requested, by offering several of its own instead, the employer was able to close the door on the employee’s claims based on failure to accommodate.
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