All too often, once a candidate is hired for a position, job descriptions are filed away and rarely referred to until it is time to recruit for the position again. Because an employee’s job duties often evolve over time, employers should make it a priority to review job descriptions at least once a year. Taking proactive steps to ensure the accuracy of a job description may significantly reduce liability in a subsequent discrimination lawsuit. So this spring, consider the following tips to clean up out-of-date job descriptions:
Specify educational and/or professional prerequisites for the position
Job descriptions should include all relevant educational, professional, and other experience necessary for performing the actual and essential job duties. For example, Jones v. City of Phila. Housing Department, 2013 U.S. Dist. LEXIS 168664 (E.D. Pa. Nov. 27, 2013), highlights the importance of outlining the professional prerequisites for a position. In Jones, the court dismissed the plaintiff’s failure-to-hire claims because he did not meet the minimum requirements for the position as outlined in the job posting. Specifically, the job posting required an applicant to have either a bachelor’s degree or be a certified Pennsylvania evaluator and also have one year of experience appraising real property for a professional organization. The plaintiff had a bachelor’s degree but he did not have an appraiser’s certification or any experience appraising real property. As such, the court dismissed his discrimination claims.
Note any scheduling requirements
The job description should include scheduling requirements, such as the need to work overtime, evenings, weekends or holidays. Listing scheduling requirements in the job description may allow an employer to avoid liability in a subsequent failure-to-hire lawsuit. For example, in Satterwhite v. Montgomery County, 497 Fed. App’x 247 (3d Cir. 2012), the court affirmed summary judgment for the employer in a failure-to-hire lawsuit alleging race discrimination because the plaintiff did not meet the qualifications outlined in the position description. In Satterwhite, the plaintiff interviewed for a part-time on-call secretary position. The official job description for the part-time on-call position specified that the employee must be available “on an as needed basis.” During the hiring process, the plaintiff expressed interest in the part-time position, but she indicated that she required “an approximate schedule for services needed rather than waiting for a call.” The court determined that the employee’s racial discrimination claim failed because she was not qualified for the position because her need for a set schedule was incongruent with the requirements for the part-time on-call position as outlined in the job description.
List “essential functions” of the position
It is imperative that a job description identify the position’s essential functions. Under the Americans with Disabilities Act (“ADA”), the duty to accommodate an individual’s disability directly relates to the employee’s essential job duties. Specifically, the disabled employee must be able to perform the essential functions of the job, with or without reasonable accommodation. The ADA provides that essential functions are “the fundamental job duties of the employment position the individual with a disability holds or desires. The term . . . does not include the marginal functions of the position.” 29 C.F.R. § 1630.2(n)(1). A job function may be considered “essential” for any number of reasons, including the following:
The position exists to perform that function;
A limited number of employees are available that can perform the function; and/or
The function may be highly specialized so that the incumbent in the position is hired for his or her expertise or ability to perform the particular function.
29 C.F.R. § 1630.2(n)(2).
Whether a function is essential is evaluated on a case-by-case basis by examining a number of factors, including an employer’s written job description. Accordingly, the job description should include an accurate description of the essential and nonessential functions of the job. Further, if a job description includes categories, such as “general duties” and “essential duties,” employers should ensure that essential functions are listed under the appropriate category.
State attendance requirements
If attendance is an essential function of the position, an employer should list it as such in the job description. For instance, in Samper v. Providence St. Vincent Med. Ctr., 675 F.3d 1233, 2012 U.S. App. LEXIS 7278 (9th Cir. 2012), the court held that an employer was not liable under the ADA for terminating an employee for absenteeism which resulted from her disability because attendance was an essential function of her position. In Samper, the court cited a variety of reasons for its decision, including the employer’s written job description, which listed “attendance” and “punctuality” as essential functions.
Detail physical requirements
If the position has physical requirements, such as the ability to lift heavy objects, the job description should specifically outline the requirements. In Majors v. General Electric Co., 714 F.3d 527 (7th Cir. 2013), the court held that the plaintiff could not establish that she was qualified for the position because she was unable to perform an essential function of the position as listed in the job description. Specifically, the employee argued that the employer discriminated against her when she was not promoted to an auditor position due to her permanent work restrictions. Lifting objects weighing more than 20 pounds was an essential function of the auditor position, however, the employee’s permanent restriction prohibited her from performing this essential function of the position. The only proposed accommodation by the employee was to have another employee lift the heavy objects for her, which was not a reasonable accommodation.
Outline travel expectations
If travel is an essential function of the position, the job description should expressly state the travel requirements. In Chalmers v. Intel Corp., 2014 U.S. Dist. LEXIS 12995 (D. Ariz. Feb. 3, 2014), the court held that an employee could proceed with failure-to-accommodate claims where factual issues existed as to whether his requested accommodation of less travel would have enabled him to perform the essential functions of his position. Specifically, because the employee’s job responsibilities were largely undefined, the employer could not establish what the travel requirements were for the position or that the requested accommodation would have created an undue hardship on the employer.
Keep hiring criteria consistent with the job description
Finally, an up-to-date job description should be the primary resource used in the development of a job posting. Failure to accurately reflect the actual hiring criteria in a job posting may result in liability if the hiring manager or decisionmaker screens out candidates based on different, inconsistent requirements. For example, in Medcalf v. Trustees of University of Pennsylvania, 71 Fed. App’x 924 (3d Cir. 2003), the court upheld a jury verdict for the plaintiff in a failure-to-hire case because of inconsistencies between the employer’s hiring criteria and job posting. Specifically, the university was recruiting for a coaching position and used a job posting which identified directing, coaching, instructing, training, and leading teams “on the water” as actual job duties for the position. In the job posting, the university placed significant importance on coaching abilities in seeking candidates for the vacancy. After receiving approximately 64 applicants (34 of whom were male), the university hired a female coach. No men were given interviews. The main reason for the university’s selection of the successful candidate was her strong administrative skill set with regard to fundraising, maintaining budgets, recruiting, and knowledge of financial aid requirements. One of the unsuccessful male applicants sued the university, alleging that the hiring process was discriminatory against male applicants under Title VII. In upholding a jury verdict (that included compensation for lost wages and medical benefits, compensatory damages, and punitive damages), the court focused on the university’s “de-emphasis” in the hiring process of the value of the coaching skills that appeared to be significant in the advertisement for the position.