Under the Americans with Disabilities Act (ADA), employers do not have to excuse an employee from performing an essential function of a job as a reasonable accommodation. Several courts have found that a job duty is an essential function where an employee performs it up to twenty percent of the time, particularly where the job description suggests that an employee must be able to perform it. The Eleventh Circuit has recently gone in a different direction. In Brown v. Advanced Concept Innovations, Inc., the Eleventh Circuit held that such a function was not essential, and thus, an employer violated Florida’s anti-discrimination law (which courts interpret consistently with the ADA) by failing to excuse an employee from performing it. While Brown may arguably be an outlier, it reinforces the importance of maintaining accurate and up-to-date job descriptions.
Timethia Brown worked for Advanced Concept Innovations, LLC (ACI), a packaging and manufacturing company, in a clerical job, that primarily required her to work at her desk in the office, but that also required her to work on the production floor up to twenty percent of her working time. Brown developed a condition that caused her to produce an excessive amount of saliva and asked ACI to allow her to use a “spit cup” while working at her desk and to excuse her from working on the production floor, where sanitation and cleanliness requirements prohibited her from spitting in a cup. ACI allowed her to use a spit cup at her desk, but it did not excuse her from working on the production floor because it determined that doing so was an essential function of her job. Because ACI determined that Brown could not perform that duty with or without a reasonable accommodation, it terminated her employment.
Brown subsequently filed a lawsuit alleging that ACI had violated the disability-discrimination provisions of the Florida Civil Rights Act. A jury found that working on the production floor was not an essential function of Brown’s job and found in her favor. Applying ADA regulations and cases to Brown’s state-law claim, the Eleventh Circuit affirmed the jury’s decision, relying principally on three facts. First, Brown worked on the production floor at most only twenty percent of the time. Second, other employees could perform her work in that area. Finally, although the job description included “walking to and from the production area is required” under “Physical Demands,” it did not specifically refer to performing work in the area under a section describing the job’s “Primary Responsibility.”
Brown arguably diverges from other circuits’ decisions and earlier Eleventh Circuit cases holding that a job duty is an essential function where the employee performed it up to twenty percent of the time and the job description at least indicated that performing the duty was part of the employee’s job. Nonetheless, the decision in Brown serves as a reminder to employers, particularly in the Eleventh Circuit (which covers the states of Alabama, Florida, and Georgia), of the importance of maintaining accurate job descriptions. Employers should review, and if, necessary, revise, their job descriptions to ensure they not only identify all essential functions, but also expressly describe them as duties or responsibilities. Additionally, since job duties may change more rapidly than an employer can update its job descriptions, employers may also want to consider noting in their job descriptions that supervisors may assign additional duties and responsibilities.