In disability discrimination cases, issues often arise as to whether a “disabled” person is able to perform the essential functions of a job. Resolving the essential duties function is a fact question which ultimately may need to be resolved by a jury. In DeStefano v. City Of Philadelphia, 2013 U.S. Dist. LEXIS 143109 (E. D. Pa. October 3, 2013)(Buckwalter, J.), the Plaintiff was a police lieutenant in the Philadelphia Police Department who injured his knees, ankles and cervical, thoracic and lumbar spine in the line of duty. Following surgery and physical therapy, Plaintiff returned to work as a police lieutenant in a limited duty position. Thereafter, the City concluded that Plaintiff was “permanently and partially disabled” from returning to his pre-injury position and informed Plaintiff that due to his injury, he would no longer be able to perform active police duty. Ultimately, Plaintiff separated from employment with the City.
In DeStefano, the Plaintiff filed a lawsuit alleging disability discrimination under the Rehabilitation Act, 29 U.S.C. §794 which provides that no individual with a disability can be subjected to discrimination under any program or activity receiving federal financial assistance. To make out a prima facie case of discrimination under the Rehabilitation Act, courts use the same standard that applies under the ADA, a Plaintiff employee bears the burden of demonstrating: (1) that he has a disability, (2) that he is otherwise qualified to perform the essential functions of the job, with or without reasonable accommodations by the employer; and (3) that he or she was nonetheless terminated or otherwise prevented from performing the job. In considering whether a particular function is essential, considerations include: (i) the employer’s judgment as to which functions are essential; (ii) written job descriptions prepared before advertising or interviewing applicants for the job; (iii) amount of time spent on the job performing the function; (iv) consequences of not requiring the incumbent to perform the function; (v) the terms of a collective bargaining agreement; (vi) The work experience of past incumbents in the job; and/or (vii) the current work experience of incumbents in similar jobs.
In DeStefano, the Court denied summary judgment, holding that there are a number of disputes of material fact pertaining to the “essential function” element of a discrimination claim including (1) whether “patrol” is an “essential function” of a police lieutenant in the Philadelphia Police Department and (2) whether Plaintiff would be capable of “patrol” were he still a police lieutenant. Since both of these questions are material to the question of whether Plaintiff is otherwise qualified to perform the essential functions of the job, with or without reasonable accommodations by the employer, the court found that summary judgment should be denied and a jury would have to decide those questions.
For more information on the Americans with Disabilities Act, Disability Discrimination and Abramson Employment Law see http://www.job-discrimination.com/lawyer-attorney-1126511.html