Disabled Employee with Poor Attendance Lost Discrimination Suit; Regular Attendance was an Essential Job Function

Written by Robert G. Brody on January 21, 2010

Is showing up to work on time an essential job function under the Americans with Disabilities Act (“ADA”)? According to a recent decision by the U.S. Court of Appeals for the Second Circuit, the answer is yes!  In Rios v. Department of Education, the plaintiff alleged she was discharged in violation of the ADA when she was discharged for poor attendance.  She claimed her attendance issues were due to a disability.  

To establish a case of discrimination under the ADA, plaintiffs must show (among other things) that they were qualified to perform the essential functions of their job with or without reasonable accommodations and that they suffered an adverse employment action because of their disability.  The key issue in this case was whether punctuality and attendance were essential functions of the plaintiff’s job.  While this requires an analysis of the specific facts of each case, here the Court found that the Department of Education’s rules and regulations, together with the corrective action taken to rectify the plaintiff’s attendance issues demonstrated that punctuality and attendance were essential functions of her job.  As the Court noted, because she could not perform the “essential function of regularly showing up to work,” the plaintiff could not show she was qualified for the job.  As a result, her discharge did not violate the ADA.

What is important to remember is that when you are faced with an employee who claims an inability to perform job duties due to a disability, you must determine whether those duties are essential and whether a reasonable accommodation can be made which would enable the employee to perform those duties.   Even where you cannot imagine a solution to the problem, you should ask the employee if there is a viable accommodation.  Once that process is complete, and you’ve determined the job function is essential, it’s time to uniformly apply your rules and let the chips fall where they may!

Brody and Associates regularly provides counsel on the ADA, as well as other civil rights issues and employment laws in general.  If we can be of assistance in this area, please contact us at info@brodyandassociates.com or 203.965.0560.

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Related Topics: Disability, Discrimination and Harassment

About the Authors

Robert G. Brody is the founding member of Brody and Associates, LLC. He has been quoted and published in national publications and appears as a guest T.V. commentator on contemporary Labor and Employment issues. Learn More