In order to be protected under the Americans With Disabilities Act, the employee must be able to perform the essential functions of the job, with or without reasonable accommodations.
In determining the essential functions of a job, courts examine job descriptions, time spent performing the function and consequences of not requiring the employee to perform the function.
Consider these facts: A photography business required its salespersons to handle four tasks: customer intake, sales, portrait photography and laboratory processing. At any given time, the employee had to be able to perform one of these tasks.
It hired an employee who was profoundly deaf. The employee could only communicate by writing notes, pointing, signing and miming.
It soon became apparent the employee could only complete the laboratory work. With respect to the other tasks which required communication with customers, the use of gestures and notes could not keep pace with the need to communicate rapidly with adults and children who were having their pictures taken. Based upon the employee’s inability to perform all four tasks, the employer terminated the employee.
The employee sued under the ADA. The court sided with the employer. It held that verbal communication skills were an essential function of the sales position, and that nothing suggested that gestures, pantomime and written communication were similarly effective and efficient.
Since the employee could not perform the essential functions of the job, the employer did not violate the ADA when it terminated him.