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WPI 330.37 Employment Discrimination—Essential Function—Definition

6A WAPRAC WPI 330.37Washington Practice Series TMWashington Pattern Jury Instructions--Civil

6A Wash. Prac., Wash. Pattern Jury Instr. Civ. WPI 330.37 (7th ed.)

Washington Practice Series TM

Washington Pattern Jury Instructions--Civil

April 2022 Update

Washington State Supreme Court Committee on Jury Instructions

Part XVI. Employment

Chapter 330. Employment Discrimination

WPI 330.37 Employment Discrimination—Essential Function—Definition

An essential function is a job duty that is fundamental, basic, necessary and indispensable to filling a particular position, as opposed to a marginal duty divorced from the essence or substance of the job.

In determining whether a function is essential to a position, you may consider, among others, the following factors:

(1) The function may be essential because the reason the position exists is to perform that function;

(2) The function may be essential because of the limited number of employees available among whom the performance of that job function can be distributed; and/or

(3) The function may be highly specialized so that the employee in the position is hired for his or her expertise or ability to perform the particular function.

Evidence of whether a particular function is essential includes, but is not limited to:

(1) The employer's judgment as to which functions are essential;

(2) Written job descriptions prepared before advertising or interviewing applicants for the job;

(3) The amount of time spent on the job performing the function;

(4) The consequences of not requiring the employee to perform the function;

(5) The terms of a collective bargaining agreement;

(6) The work experience of past employees in the job; and/or

(7) The current work experience of employees in similar jobs.

NOTE ON USE

This definition should be used whenever there is an issue as to whether a function of the position is essential. This issue is most likely to arise in accommodation cases. This instruction is designed to be used together with WPI 330.34 (Disability Discrimination—Reasonable Accommodation—Definition). In appropriate cases, also use WPI 330.36 (Employment Discrimination—Disability Discrimination—Undue Hardship—Burden of Proof) or WPI 330.04 (Employment Discrimination—Bona Fide Occupational Qualification (BFOQ)). See Comment below regarding use of BFOQ instruction in discharge cases.

COMMENT

This instruction was modified for this edition to include criteria from 29 CFR § 1630.2(n)(3) (2012) for determining the existence of an “essential job function,” because “Washington courts have adopted the definition promulgated by the United States Equal Employment Opportunity Commission when interpreting the Americans with Disabilities Act of 1990 (ADA). …” Kries v. WA-SPOK Primary Care, LLC, 190 Wn.App. 98, 124–25, 362 P.3d 974 (2015). See discussion below.

“The term essential functions means the fundamental job duties of the employment position the individual with a disability holds or desires. The term ‘essential functions’ does not include the marginal functions of the position.” Davis v. Microsoft Corp., 149 Wn.2d at 533 (quoting 29 C.F.R. § 630.2(n)(1) (2002)) (emphasis in original). Job presence or attendance may be an essential job function. Davis, 149 Wn.2d at 534.

The term “essential job function” is not found in RCW 49.60.180, so “Washington courts have adopted the definition promulgated by the United States Equal Employment Opportunity Commission when interpreting the Americans with Disabilities Act of 1990 (ADA). …” Kries, 190 Wn.App. at 124–25 (citing federal cases). “Washington courts have in fact drawn on the federal definition to instruct juries on the meaning of ‘essential functions.’” Davis, 149 Wn.2d at 533 (citing Herring v. Dep't of Soc. & Health Servs., 81 Wn.App. 1, 27 n.12, 914 P.2d 67 (1996); Easley v. Sea-Land Serv., Inc., 99 Wn.App. 459, 472 n.3, 994 P.2d 271 (2000)). The factors and evidence referenced in this instruction are taken from the EEOC's definition at 29 C.F.R. § 1630.2 (2012).

The court in Kries v. WA-SPOK Primary Care, LLC, 190 Wn.App. 98, 123–126, 362 P.3d 974 (2015), noted the distinction between “essential functions of a job” and “qualification standards” for a position as articulated in Bates v. United Parcel Services, Inc., 511 F.3d 974 (9th Cir. 2007) (addressing claims brought under the ADA). Essential functions are basic duties. Qualification standards include personal and professional attributes that may include physical, medical, and safety requirements. In drawing this distinction, the Bates court relied on definitions of the terms, under ADA regulations, found respectively in 29 C.F.R. § 1630.2(n)(1) and § 1630.2(q). A qualification standard applies to a person with a disability who applies for a job and meets all selection criteria except one that he or she cannot meet because of a disability.

Washington law is well settled that to prove a claim for failure to accommodate, a plaintiff must demonstrate that he or she can perform the essential functions of the job as determined and applied by the employer—not that the employer could revamp the essential functions of a job to fit the employee.

Fey v. State, 174 Wn.App. 435, 452, 300 P.3d 435 (2013).

[Current as of November 2020.]

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