On June 28, 2016, the 7th Circuit affirmed a judgment entered on a jury verdict in favor of the plaintiff in a disability discrimination lawsuit. Brown v. Smith, No. 15-1114 (7th Cir. 6/28/2016). The plaintiff, a transportation supervisor, sued his former employer, alleging that his employment was terminated on account of his disability–diabetes–in violation of the Americans with Disabilities Act (“ADA”). The ADA prohibits employers from discriminating against a qualified individual on the basis of his or her disability. An employee is qualified if he or she can perform the essential functions of his or her employment position with or without reasonable accommodation. The employer’s termination notice stated that the reason for the plaintiff’s termination was his inability to obtain a commercial driver’s license (“CDL”). This appeal involved the issue of whether possession of a CDL–which the plaintiff was unable to obtain due his diabetic condition–was an essential function of his job. This was a question of fact for the jury, which concluded that having a CDL was not an essential function of the plaintiff’s job.

Although the plaintiff’s written job description lists possession of a CDL as a specific job requirement, the content of a job description is only one of several factors to be considered in determining whether a job function is essential. Other relevant factors include: (1) the employer’s judgment as to which functions are essential; (2) the amount of time spent on the job performing the function; (3) the work experience of past employees in the job; and (4) the consequences of not requiring the past employees to perform the function. Driving buses was not a key responsibility for past street supervisors or for the plaintiff, as established by various evidence, including the testimony of the plaintiff’s supervisor, who knew that the plaintiff did not have a CDL when he was promoted to street supervisor. The 7th Circuit ruled that there was adequate evidence to support the jury’s conclusion.

On another issue, mitigation of damages, the 7th Circuit ruled that reasonable self-employment or an attempt to start a business constitutes permissible mitigation of damages, even if the endeavor ultimately fails.