Although vocational expert reports and testimony are generally used in the damages portion of a Personal Injury case, they can also help establish an employer’s liability in a wrongful termination or discrimination case. By conducting a job analysis, a vocational expert can establish what reasonable accommodations are available, whether an employer provided reasonable accommodations, whether a requested accommodation would cause an employer undue hardship, and whether an employee was capable of performing the “essential functions” of a job.
The Americans with Disabilities Act (ADA) requires employers to reasonably accommodate the known physical or mental limitations of qualified applicants or employees. An individual who could otherwise perform the essential duties of the job but for their disability may ask their employer for reasonable accommodations. The employer is then required to consider accommodations that would not “impose an undue hardship” on the employer or company.
In Dexler v. Tisch, the plaintiffsued his employer under the Rehabilitation Act of 1973 when he was not hired for employment by the United States Postal Service to work as a distribution clerk. The plaintiff suffered from anchondroplastic dwarfism.He was four feet, five inches tall, weighed 200 pounds, and had a vertical reach of 58.5 inches. The position required individuals to perform a variety of tasks, and individuals could not be assigned specifically to any one task. The plaintiff’s stature and reach rendered him unable to load and unload trucks, load and unload mail, and impaired his ability to sort mail as he could not reach the uppermost row of mail boxes. Plaintiff proposed the employer provide him with a portable step stool to extend his reach which would allow him to perform 90% of the required job duties. The court found that Mr. Dexler made the necessary facial showing, through the testimony of vocational rehabilitation experts, that he could be safely accommodated by the use of a step stool and/or platform and by some job restructuring. Unfortunately, evidence from witnesses familiar with the operation of the postal facilities showed that the suggested accommodations would impose an undue hardship on the Postal Service.
This case illustrates how a vocational expert can help establish that an individual can perform job functions with reasonable accommodations, but it still has to be established that these accommodations do not place an undue burden on the employer.
Edmond Provder, owner of Occupational Assessment Services, Inc. (OAS), is a Certified Rehabilitation Counselor. He has worked as a vocational expert witness for over forty years, and has extensive experience documenting the essential functions of a job through job analysis. He is experienced in assessing if an individual can perform a job given their limitations. Contact OAS at 800-292-1919 to discuss how we can help in your Employment Law or ADA case.