The Americans with Disabilities Act is not an affirmative action law, meaning that employers are not required to hire or continue the employment of disabled persons who cannot perform essential job functions after reasonable accommodations have been provided. What happens if the claimed essential functions are rarely performed? According to a recent unpublished decision from the Tenth Circuit Court of Appeals, the employer can still require the disabled person to be able to perform this work.
 
In Mielnicki v. Wal-Mart Stores, Inc. the plaintiff was a mentally disabled maintenance worker who refused to clean the men’s restroom when asked. Her physician requested an accommodation that would excuse her from this task on the basis that her developmental disability resulted in a fear of assault if she was placed in this situation. Wal-Mart declined and terminated the plaintiff. She sued, claiming failure to provide reasonable accommodation under the ADA.
 
The Tenth Circuit affirmed dismissal of the complaint. The plaintiff argued that cleaning the restrooms was not an essential function of her job. As proof, she alleged that she had not been asked to perform this function for 14 years. The court rejected this argument, noting that failure to require an employee to perform a job task for a substantial period of time does not prevent the employer from contending that it is an essential function.
 
Wal-Mart was significantly helped in this case by evidence showing that the employee who previously cleaned the restrooms had recently quit. In other cases, federal courts have found that if a function has not been performed by anyone for a considerable period of time, this is strong evidence that it is not essential. Employers should document all essential functions in written job descriptions that explain the total job requirements and highlight those deemed to be the reasons why the job was created in the first place.

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