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Employer’s Defense To Disability Discrimination Claim Doomed By Its Own Job Descriptions: Is It Time To Review And Update Your Job Descriptions?

In light a recent decision of the New Jersey Superior Court, Appellate Division, in Sheridan v. Egg Harbor Township Board of Education, it certainly is.

The Facts: Barbara Sheridan, an obese individual, was employed for eight years as a custodian by Egg Harbor Township Board of Education (the “Board”). After observing Ms. Sheridan breathing heavily and turning red while performing her custodial job duties, her supervisor became concerned that she might be unable to climb ladders, would have trouble climbing stairs, and could injure herself or others while attempting to complete her job duties. In response to these concerns, the Board required Ms. Sheridan to undergo a fitness for duty examination (“FDE”) administered by an independent physician. In conducting the FDE, the physician relied upon a job description provided by the Board detailing the physical tasks required of all custodians in the district, including a requirement to lift and carry 75 pound objects a distance of 50 yards. Ms. Sheridan failed several portions of the FDE, prompting the Board to conclude that she was physically incapable of performing the duties of school custodian and terminated her employment. Ms. Sheridan filed suit alleging she was discriminated against because of her obesity in violation of the New Jersey Law Against Discrimination, N.J.S.A. 10:5-1 et seq. The trial court concluded that the Board was justified in relying upon the results of the FDE in reaching its termination decision and dismissed the case. Ms. Sheridan appealed.

The Appeals Court’s Decision: In reversing the favorable decision for the Board and sending the case back for trial, the Appellate Division concluded that while an FDE could provide a legitimate, non-discriminatory basis for the Board’s termination decision, the FDE had to be based upon a “fair and realistic” job description for the position in question. In this case, the court held that “reasonable jurors could conclude that the more strenuous exercise of lifting seventy-five pounds for fifty yards, as was tested in the FDE here, is not a fair or realistic physical expectation to have for a school custodian.” In addition, the Board’s principal witness testified that the only time she could recall custodians lifting 75 pounds was twice a year to lift paper deliveries, which were then loaded directly onto carts. Finally, while the Board pointed to concerns about Ms. Sheridan’s ability to climb ladders, the FDE did not assess her ability to do so. The Appellate Division reasoned that when an employer chooses to rely upon an FDE as a legitimate reason for terminating an employee, the job description used to conduct the FDE must accurately correspond to the day-to-day job duties and physical demands of the position, factors the court found lacking in this case. Moreover, the FDE must also assess the physical requirements relied upon by the employer as a basis for its termination decision.

The Bottom Line: Employers frequently rely upon outdated or overly-aggressive job descriptions that do not, in whole or in part, correlate to the actual day-to-day physical demands of the position. Reliance upon such defective position descriptions can undermine an employer’s efforts to show that the employee holding the position is in fact unable to assume the physical requirements of his or her job. In light of this decision, we strongly recommend that employers review their job descriptions to make certain they reflect accurate and realistic physical requirement of the job. Employers should consider eliminating those physical requirements that are rarely, if ever, called upon by employees holding the position. In addition, employers should not rely upon any physical job requirements that were not in fact tested by during the FDE. If not, revise it now!

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