On July 20, 2020, the 7th Circuit affirmed an order of summary judgment in favor of an employer-defendant in a disability discrimination lawsuit under the Americans with Disabilities Act (“ADA”). Tonyan v. Dunham’s Athleisure Corporation, No. 19-2939 (7th Cir. July 20, 2020). The plaintiff worked as a store manager for the defendant. She sustained a series of injuries that required multiple surgeries and temporary restrictions to her shoulder, arm, and hand movement. After her doctor imposed permanent restrictions, including one preventing her from lifting more than two pounds with her right arm, the defendant terminated her employment.

The defendant contended that in light of its “lean” staffing model, store managers like the plaintiff were required to perform physical work such as unloading and shelving merchandise, as essential job functions. The plaintiff argued that physical tasks were not essential functions of her job, and that, in any event, she was able to perform her essential job functions. The 7th Circuit concluded that physical tasks were essential functions of her job. Consequently, because of the restrictions on her movement, she was unable to perform the essential functions of her position.

The plaintiff filed a charge of disability discrimination with the EEOC alleging that the defendant violated the ADA by terminating her employment. The EEOC issued a notice of right-to-sue letter to her. She then filed a federal lawsuit in which she alleged disparate treatment and failure to accommodate her disability, in violation of the ADA. The defendant moved for summary judgment. In opposition, the plaintiff submitted a report from an expert witness stating that she could perform physical labor, but only with the restrictions. The district court granted summary judgment for the defendant, concluding that the plaintiff failed to meet her burden to prove that she could perform the essential functions of her job with or without reasonable accommodation.

The ADA makes it unlawful for a covered employer to discriminate against a qualified individual on the basis of disability. A qualified individual is one who can perform the essential functions of her employment position with or without reasonable accommodation. There are two types of discrimination claims under the ADA: (1) disparate treatment, where the employee alleges that the employer treated her differently because of her disability; and (2) failure to provide a reasonable accommodation. Although the plaintiff brought both types of ADA claims before the district court, on appeal she challenged only the district court’s ruling on her disparate treatment disability discrimination claim. In order to establish a disparate treatment disability discrimination claim under the ADA, a plaintiff must plead and prove that: (1) she is disabled; (2) she is able to perform the essential functions of her job with or without reasonable accommodation; and (3) she suffered an adverse employment action because of her disability. At issue in this case was whether the plaintiff could perform her essential job functions, and what they were. On appeal, she contended that the district court was wrong in determining that (a) physical tasks were part of her essential job functions as a store manager, and that (b) she was unable to perform them.

Whether a job function is essential is a question of fact, not law. In connection with this issue, courts consider the employer’s judgment and written job description as evidence, but these are not dispositive. Courts also consider the consequences of not requiring the employee to perform the function, the amount of time an employee actually spends performing the function, and the experience of other employees in the position. The 7th Circuit concluded that the physical tasks were essential functions of the plaintiff’s position in light of its written job descriptions, the time expected to devote to physical tasks, the experience of other store managers, and the defendant’s “lean” business model. Moreover, the ability to delegate a task does not necessarily render the task non-essential.

In addition, the plaintiff could not meet her burden to establish that she could perform those physical tasks with or without reasonable accommodation. The permanent restrictions would have impeded her ability to perform many essential functions of her job. The employer is entitled to rely on the assessment of the employee’s own doctor in determining whether the employee is able to perform her essential job functions.

Because the record demonstrated that there was no genuine issue of material fact as to whether physical tasks were part of the plaintiff’s essential job functions, and whether she could not perform them, with or without reasonable accommodation, the district court appropriately entered summary judgment for the defendant on the plaintiff’s ADA claim. An employee who is not a qualified individual with a disability cannot maintain a viable ADA claim.