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The Use of ‘Evidence of the Essential Functions of the Job’ to Address Obesity as a Disability

Using Functional Capacity Evaluation to End the “Regarded As” Argument

A series of Court of Appeals cases involving the question of obesity as a disability under ADA Title 1 makes clear that the issue has not been settled. This lack of clarity stems from disagreement about the relationship of obesity to an underlying qualifying impairment. 

This blog suggests an alternative to arguing the definition of impairment and disability in the context of an employment discrimination claim based on “regarded as disabled.” The option is to focus on the “Qualified Individual” status of the employee with whom the employer has safety or productivity concerns. Apprehension involving direct threat, decreased productivity, inability to respond to emergencies, or the need for reasonable accommodation each are addressed under the Qualified Individual section of the code.

§12111. Definitions — (8) “The term ‘qualified individual’ means an individual who, with or without reasonable accommodation, can perform the essential functions of the employment position that such individual holds or desires. For the purposes of this subchapter, consideration shall be given to the employer’s judgment as to what functions of a job are essential, and if an employer has prepared a written description before advertising or interviewing applicants for the job, this description shall be considered evidence of the essential functions of the job.”

Reliance on verifiable “evidence of the essential functions of the job” replaces the often lengthy, opinionated legal skirmish over whether or not the employer has engaged in an adverse employment action based on the employer’s impression of an individual as disabled.

Evidence of the essential functions of the job becomes actionable data when it is used to calculate job match, subsequent to a Functional Capacity Evaluation. Paul James v. The Goodyear Tire & Rubber Com, No. 08-6332 (6th Circuit. 2009) outlines the basic tenets of a 42 U.S.C §12112(d)(4)(A) Medical Examination. This section codifies the umbrella under which an FCE is judged when it is used as a tool to quantify the workplace ability and safety of an individual. When administered by an ADA Title 1–aware therapist working as an FRE 702-level evaluator, this process presents as one of the most reliable and objective methods of determining the Qualified Individual status of an individual.

In Paul James, the court found that the use of a Functional Capacity Evaluation (FCE) was a key component in the process of addressing plant-wide concerns about Mr. James. A by-product of the FCE was the likelihood that this job match and safety evaluation based on the accepted demands of the job shielded Goodyear from having the exam trigger an adverse employment action under the “regarded as” section of the code.

As a cautionary example, this year’s decision in Richardson v Chicago Transit Authority, Nos. 17-3508 & 18-2199 (7th Circuit. 2019) held that the evidence suggested that CTA staff regarded Richardson’s weight as a physical characteristic that made it unsafe for him to conduct the physical demands supporting the essential functions of his job. It is important here to recognize the difference between a discussion of a “physical characteristic” as opposed to taking an adverse employment action based on the assumption that Mr. Richardson had a disability after observing his body mass. Given their genuine safety concerns, not referring to their concerns with reference to a disability caused by an underlying physiological disorder (the impairment responsible for a significant body mass assumed to be a disability) established the legal shield against a “regarded as” attack.

When concerned about the safety or direct threat status of an employee, use valid job qualification and essential function data in combination with a high-level Functional Capacity Evaluation to make an informed, discrimination-free decision about an employee’s Qualified Individual status.

Contact Roy Matheson by phone or email

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