Using Vocational Experts to Prove ADA Violations

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vocational experts

The Americans with Disabilities Act (ADA) protects individuals with disabilities from discrimination. A main component of every ADA claim is proof that the plaintiff is disabled. Many ADA claims are based on a failure to accommodate a disability. Vocational experts can provide evidence for plaintiffs and defendants regarding both the plaintiff’s status as disabled and the employer’s failure to accommodate.

Definition of Disability

The ADA defines a disability as “a physical or mental impairment that substantially limits one or more major life activities of such individual.” A history of having a disability or the perception that someone is disabled also fits within the statutory definition.

The definition of “major life activities” was broadened in 2008 after Congress determined that courts were rejecting too many ADA claims that clearly demonstrated disability discrimination. In many cases, a plaintiff’s status can now be established by evidence that a health condition substantially limits a major bodily function, such as the respiratory, neurological, or digestive system.

When medical evidence does not establish a significant impairment of a bodily function, plaintiffs base their claims on the functional definition of “major life activities.” After 2008, that definition includes “caring for oneself, performing manual tasks, seeing, hearing, eating, sleeping, walking, standing, lifting, bending, speaking, breathing, learning, reading, concentrating, thinking, communicating, and working.”

Medical evidence may establish limitations of vision, hearing, breathing, and other listed activities. Functional capacity evaluations may define limitations of the ability to lift, walk, stand, or bend. Psychologists and neurologists might offer opinions about the ability to think, concentrate, or communicate. Whether an individual’s ability to work is substantially limited is a question that vocational experts can answer.

Limitation of the Ability to Work

In some cases, the evidence as to whether a functional limitation is “substantial” is ambiguous. Lawyers sometimes conclude that a limitation of the ability to work is their best evidence that a client is disabled. 

Courts agree that work restrictions are insufficient by themselves to prove that a worker is disabled. For example, the Court of Appeals for the Sixth Circuit recently considered an ADA claim made by an assembly line worker whose work restrictions prevented him from lifting objects above his shoulders. The worker complained that the employer failed to accommodate his disability after it added new job duties to his work. Medical evidence established that even if the new duties were more difficult, he could perform them without violating his work restrictions. In the Sixth Circuit’s opinion, since the worker could perform assembly line duties notwithstanding his work restrictions, he was capable of working and thus not disabled.

The EEOC administers the ADA. An EEOC guidance recognizes that “an impairment may limit someone’s ability to perform some aspect of his or her job, but otherwise not substantially limit any other major life activity.” At the same time, the ADA guidance derives this rule from court decisions: “Demonstrating a substantial limitation in performing the unique aspects of a single specific job is not sufficient to establish that a person is substantially limited in the major life activity of working.” Instead, a substantial limitation of the activity of working refers to difficulty performing a “class or broad range of jobs in various classes” rather than a “type of work.”

Distinguishing a “class” of work from a “type” of work isn’t always easy. The EEOC offers the examples of commercial truck driving and assembly line jobs as a “class” of work. On the other hand, evidence of an inability to perform the specific job that the plaintiff performed before being injured or acquiring a health condition is not enough to prove that the plaintiff is disabled.

Vocational experts are in the best position to assess whether a plaintiff is incapable of working within a broad range of jobs or a particular class of employment. Vocational experts begin that assessment by examining the plaintiff’s work history, training, and education to determine the work they are qualified to perform. Vocational experts next assess limitations that have been defined by functional capacity evaluations. By comparing those limitations to the physical requirements associated with different jobs within a class of work, a vocational expert can determine whether the plaintiff is capable of performing jobs in the economy that fall into a class of work the plaintiff is qualified to perform.

Failure to Accommodate

Assuming that a plaintiff is disabled, the plaintiff has the right to request an accommodation of the disability so that the plaintiff has the same access to work as employees who are not disabled. Employers must provide accommodations if doing so would not cause an undue hardship.

Reasonable accommodations must be provided if they will help an employee perform the essential functions of a job. Unfortunately, employers tend to define the term “essential function” broadly, viewing every task they assign as essential, while employees tend to define it narrowly, regarding only the tasks they prefer to perform as essential.

In reality, essential functions are basic job duties that an employee must be capable of performing, with or without an accommodation. Essential functions are often defined by job descriptions, although courts look at several factors to decide whether a task is essential, including:

1. whether the position exists for the performance of that function,
2. whether the employee has highly specialized skills that are needed to perform the function, and
3. the number of other employees available to perform the function or among whom the performance of the function can be distributed.

For example, a clerical employee might occasionally be expected to carry a heavy box of paper from a supply closet to a copier. Essential functions of the job might be typing, document formatting, and database entry, while carrying the occasional box might be a collateral function that someone else could just as easily perform.

Vocational experts can help employers and employees define the essential functions of a job. Vocational experts can also help identify accommodations that would allow an employee to perform essential functions. Based on limitations imposed by a disability, vocational experts can determine whether the job or the workplace can be modified in a reasonable way to allow the employee to perform the job’s essential functions.