Peacock Tales • Spring 2016
At first glance, an employer’s task in crafting job descriptions may appear to be straightforward. Most employers prepare job descriptions with an eye toward attracting high quality candidates and establishing clear expectations for employees. Employers may be less focused, however, on the legal implications of the words they choose. A well-drafted job description is one which best postures the employer to assert its legal rights and successfully defend a lawsuit, while also fulfilling the practical goals of effective recruitment and employee accountability.
Why is a job description a legal issue?
There are several important reasons why a job description must be viewed as a legal document. All Pennsylvania employers with at least four employees are subject to the Pennsylvania Human Relations Act, which protects applicants and employees from discrimination on the basis of numerous characteristics such as disability, race, religion and gender. Larger employers are also obligated to comply with the Americans with Disabilities Act (ADA) and other federal anti-discrimination laws.
A sound job description is an indispensable step in meeting an employer’s obligations toward disabled applicants and employees. Anti-discrimination laws require employers to offer reasonable accommodations to allow individuals to perform the essential functions of a position. An employer should begin this process by providing an applicant with a job description that clearly and accurately describes the position’s essential functions. The employer should then ask the applicant if he or she can perform the essential functions of the position with or without a reasonable accommodation. It is preferable to ask this of the applicant in writing and to require the applicant’s signed response.
If the applicant indicates that no accommodations are needed, the process is complete and the employer has documentation of compliance with its legal obligation. If the applicant indicates that an accommodation is needed, the employer must begin the interactive process of discussing with the applicant the question of whether a reasonable accommodation can be provided to allow the applicant to qualify for the position.
A good job description serves a similar purpose with respect to employees who may request an accommodation. In that scenario, the employer would refer to the job description’s listing of the position’s essential functions in order to discuss with the employee the possibility of reasonable accommodations to allow him or her to perform those functions.
An effective job description will also position the employer to defend an action alleging discrimination based on disability or other legally protected characteristics. An employer can position itself to successfully defend a lawsuit by an applicant who was not hired by demonstrating that the successful applicant was more qualified in light of the job description. Similarly, an employer should be able to point to a clear job description in defending an action brought by a terminated or disciplined employee in order to demonstrate that it was the employee’s failure to meet clearly defined and communicated expectations, and not discrimination on the part of the employer, that led to the adverse consequence.
Finally, a good job description can assist in determining an employee’s eligibility for worker’s compensation. By providing the evaluating physician with a clear description of the physical demands of a position, the employer may be more likely to obtain an accurate and job-specific assessment of the injured employee’s capabilities and limitations. This is preferable to the vague statements that are at times provided to employers by physicians, such as “employee is released to light duty.”
What are some important qualities of a good job description?
The basic rule of thumb in preparing job descriptions is to include everything that is necessary, and nothing that is unnecessary. This applies when listing both qualifications and job duties.
The process of writing a job description should begin with a thorough brainstorming session, taking into account all requirements and tasks of the job. This will require some critical and creative thinking on the employer’s part as it is important to look beyond that which may at first seem obvious.
For example, when looking at a job that demands largely physical labor, it may be relatively simple for the employer to identify essential functions such as lifting a certain amount of weight, or the ability to climb a ladder. The employer should still take care not to neglect potentially less obvious physical demands, such as bending, crouching, crawling, sitting or standing.
When the position at issue is largely a desk job, employers may forget that certain basic physical capabilities will still come into play. The ability to see, hear, or communicate effectively through various means may need to be included among job qualifications and essential functions.
It is important to note that a person’s physical inability to perform certain functions will not necessarily disqualify him or her from the position. Rather, depending on applicable law, it may be incumbent upon the employer to discuss with the disabled applicant or employee whether a reasonable accommodation can be made in order to allow the person to perform the position’s essential functions.
The question of whether a specific skill or task rises to the level of an essential function of the job may not always be immediately clear. For example, most modern workplaces are equipped with various forms of technology. To determine whether technology-related skills and tasks are essential, an employer should look to the nature and central purpose of the job, as well as the big picture of all positions within the workplace.
Consider the example of preparing a job description for an attorney seeking employment in a firm that also has separate positions for taking dictation and typing. While it may be convenient for the attorney to perform a certain amount of routine typing, it is likely not essential to the job.
Employers must also take care to omit non-essential qualifications. For example, an employer should not require a college degree, or even list it as a preference, if the essential functions of the position do not truly require one. Employers may mistakenly require a college degree based on a belief that it will better equip an individual to perform the essential functions of the position. Therefore, if the employer cannot tie a specific qualification to specific essential job functions, the employer risks exposure in a discrimination action.
Likewise, employers should be aware that the Pennsylvania Human Relations Act prohibits discrimination against an applicant or employee who holds a GED instead of a high school diploma. Therefore, if a high school education is essential to a position, the correct approach is to require a “high school diploma or equivalent.”
A carefully drafted job description, with the assistance of an employment attorney, will best posture an employer to protect its legal interests, while also serving the organization’s needs for qualified and competent personnel.
Peacock Keller & Ecker, LLP • 70 East Beau Street • Washington, PA 15301 • 724-222-4520