Overview: An employer may wish to define a job's essential functions ahead of time in order to attract the most suitable candidates. Having a written, updated job description prepared before advertising a job or interviewing applicants is a good step in that regard.
It is important to note that while the percentage of time spent on particular activities may help determine what is essential, this is not always the case. For instance, a firefighter may spend only a small amount of time actually fighting fires, but no one would argue this is the essential part of the job. The same may hold true with certain other occupations.
Marginal functions should be excluded. Including them in some situations may expose an employer to liability under Title VII of the federal Civil Rights Act or other antidiscrimination laws. For example, listing a college or professional degree as "essential," when it is not needed for the particular job could discourage a larger percentage of minority candidates from applying.
Trends: The Americans with Disabilities Act Amendments Act (ADAAA) of 2008 made it easier for individuals with disabilities to bring claims by broadening the definition of disability. This makes it even more critical for employers to avoid including nonessential job functions in job descriptions that may have the effect of deterring these individuals from applying.
Author: David B. Weisenfeld, JD, Legal Editor
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