How a Bad Job Description Lost an Airtight Case, and Other Horror Stories

by Steve Bruce

Here's what might happen when job descriptions aren't accurate and up to date:

Failed to Define Essential Functions

One of the most common failures of job descriptions is not segmenting out the essential functions of the position. Here's what can happen:

You've fired a person who just can't get the job done. Yes, the person has a disability, and you've tried to accommodate the disability, but the person just isn't getting enough work done. True, he is doing duties D, E, and F, but he isn't making any progress on A, B, and C. And, unfortunately, those are the duties that you really care about—the ones you view as the real meat of the position.

The former employee now visits an attorney and you've got a lawsuit on your hands. Discrimination against a person with a disability. It's going to come down to a simple question—Did the employee accomplish the essential functions of the job with or without reasonable accommodation?

If yes, there's a potential winning lawsuit; if no, probably not. So you go to the job description. Whoops. You haven't broken out the essential functions. You're going to be in a hole, trying to establish, after the fact, that A. B, and C were actually the essential functions.

And the situation is going to be that much worse in the case where A. B, and C—essential as they are—don't take as much time as D, E, and F. Can you prevail in court? Perhaps, but why put yourself in that position?

Job Description Is Out of Date

Jimmy's been fired for poor performance. He sues saying it's not true, his performance was good, the company just doesn't like people in his protected category.

But, you say, he didn't do X and he didn't do Y, and those are critical elements of the job. Let's look at the job description, Jimmy's attorney says. Whoops. The job description hasn't been updated to include the duties that Jimmy's being accused of failing at.

This sounds like a joke, but over the past few years, most jobs have changed dramatically. With layoffs, almost everyone has assumed new duties.

Sometimes the new duties are at higher level, sometimes at a lower level. For example, a supervisor may have been let go, and those under him now have to assume his supervisory duties in addition to their regular duties.

Or the opposite happens. Say there used to be five people doing a job and now there are two. Those two people are working so hard that the supervisor takes away some of their duties. And usually it's the higher level duties.

Note: This has serious wage/hour implications—in the first case, where higher-level duties were added, a former non-exempt may now be doing exempt work. In the latter case, where higher level duties were assumed by the manager, the job may no longer be exempt.

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