Disabled but Unqualified: The Essential Functions Requirement as a Proxy for the Ideal Worker Norm

Michael Edward Olsen, Jr.

Volume 66, Issue 5, 1485-1524

Over the course of nearly two decades, courts have narrowed the employment protections of the Americans with Disabilities Act of 1990 by interpreting the term “disabled” so narrowly that virtually no person qualified for the Act’s protections. Moreover, if a person was sufficiently “disabled,” they were often so severely disabled that they could not work at all; thus, they were not “qualified individuals” who could perform the essential functions of the job.

In response, Congress passed the Americans with Disabilities Act Amendments Act of 2008 to give broad coverage to persons with disabilities. Courts have followed this mandate by interpreting the term “disabled” broadly; however, courts still find that persons are not “qualified” because they cannot perform the essential functions of their position. This Note shows that courts frequently give deference to employers in the “essential functions” inquiry. Moreover, courts import normative assumptions about how jobs should be performed into the essential functions inquiry, contrary to congressional intent. As a consequence, courts infrequently reach the reasonable accommodation process—where the court asks whether the employer can accommodate an employee’s limitations without imposing an undue hardship on the employer.

This Note suggests several remedies. First, Congress could clarify that courts are not required to defer to an employer’s job description and, relatedly, courts could give greater weight to the actual job duties performed by an employee. Finally, Congress could explicitly delegate substantive rulemaking authority to the EEOC, as it did with the term “disabled.”

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