Enforcement of discrimination claims by the Equal Employment Opportunity Commission (“EEOC”) has increased, particularly in the areas of disability discrimination. This is due, in part, to the passage of the Americans with Disabilities Amendments Act of 2008 which broadened the definition of a qualifying disability. On October 4, 2010, the EEOC issued a press release announcing that it had sued Maverick Country Stores alleging disability discrimination and retaliation.  The suit alleged that a bakery worker at the multi-state convenience store chain was terminated 13 days after the employer learned that the worker was HIV positive.

Although the Maverick case is in the early stages, it appears that one of the main defenses presented by the employer would be that the employee posed a direct threat of harm. Under the Americans with Disabilities Act, an employer is required to make a reasonable accommodation for a disabled employee that would permit the employee to perform the essential functions of the job, unless doing so would cause an undue hardship.  One of the defenses to a disability discrimination claim available under federal regulations is if the employee poses a direct threat of harm to him or herself or another employee.  The regulations make clear, however, that an employee can only be terminated on account of posing a direct threat if that direct threat cannot be eliminated or reduced by reasonable accommodation.  The regulations also caution that the determination of whether an employee poses a direct threat must be an individualized assessment as to whether the employee can presently safely perform the essential job functions.

One of the factors that a jury or judge may look at to determine what is an essential function of an employee’s job is to look at written job descriptions. Employers should continuously update job descriptions to address natural evolutions in the position. However, employers should be cautioned not to take a “kitchen sink” approach and simply include every possible job duty in the description as an essential position. If upon examination, it appears that non-essential functions are included as essential functions, it may be used as evidence of an attempt to weed out individuals with disabilities and be used as evidence against the employer in a disability discrimination case. Although there is no precise formula, when determining what is an essential function of the position, employers should look at how much time is spent performing each task and the consequence of not requiring the employee to perform the task.