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Schwan’s Wins Disability Discrimination Suit

by Katherine Tracy

The Tenth Circuit  issued a decision last week in a disability discrimination suit (Hawkins v. Schwan’s Home Service, Inc, 2015 WL 690397, No. 13–6149 (10th Cir. Feb. 19, 2015)) filed by a former supervisor. At the district court level, the court concluded the supervisor was not a qualified person with a disability because he could not perform the essential functions of his job, with or without reasonable accommodation. The Tenth Circuit recognized that even job duties rarely performed may still qualify as “essential functions”.

The ADAAA’s implementing regulations define “essential functions” as “the fundamental job duties of the employment position the individual with a disability holds or desires,” but “not … the marginal functions of the position.” 29 C.F.R. § 1630.2(n)(1). A particular job duty may be essential “because of the limited number of employees available among whom the performance of that job function can be distributed,” 29 C.F.R. § 1630.2(n)(2)(ii).

While the supervisor’s job duties required him to manage the company’s fleet of delivery trucks, it did not state that his duties included driving trucks. But, the description did require federal Department of Transportation certification as a driver. The supervisor had health issues that prevented him from obtaining the required DOT certification and by extension the ability to drive a truck. However, the supervisor had not driven a truck for approximately 2 1/2 years.

Despite the evidence that the supervisor had not driven a truck for a 2 1/2 period of time, the Tenth Circuit affirmed the finding that DOT certification and the ability to drive a truck were essential functions of the job.

The Court’s opinion reaffirms the longstanding deference courts apply to a company’s business judgment and a court’s refusal to act as a super-personnel department.

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