How to Escape the Consequences of an Inaccurate Job Description

posted by Neil E. Klingshirn | October 31, 2016 in Employment Law

Kenneth Camp (age 61) worked for Bi-Lo, LLC (“Bi-Lo”) as a grocery stock clerk for 38 years. He was one of three clerks who worked as a team to stock the grocery store each night, which involved unloading stock from pallets and placing it on store shelves. During March 2012, the store’s director, Gilreath, arrived at the end of third shift and found that Camp’s team did not finish shelving the product. When Gilreath asked why, Camp’s supervisor, Bishop, stated that Camp had a “bad back” and that the team had to help him with the “heavy stuff.”  Until this point, Gilreath did not know of Camp’s back problems or any other time when the third-shift crew failed to finish before the end of a shift. After that conversation, Gilreath told Camp that Bi-Lo was “thinking of putting [him] on light duty.” In April 2012, Camp met with HR and told them that he could still do his job. At this point, Bi-Lo required Camp to have his physical capabilities tested by a physician, because according to a job description written more than 30 years after Camp started with Bi-Lo, “lifting” at least 20 pounds constantly and 20-60 pounds frequently was a physical demand of the position. The physician found that Camp could lift 20 pounds frequently, but could not safely lift more than 35 pounds.

Bi-Lo made Camp take a leave of absence and instructed him to use the remainder of sick leave and vacation days, then use short-term disability, to “reach his sixty-second birthday when he could begin [using] Social Security and start getting [his] retirement check.” In September, Bi-Lo informed Camp he would be terminated on October 12 for “job abandonment” unless he provided a “fitness for duty” form signed by his doctor.  Camp requested an accommodation to allow for a return to work; Bi-Lo refused unless Camp’s doctor verified Camp could safely lift 35 pounds. Bi-Lo terminated Camp on October 12 for not having the requisite form and because he could not fulfill the physical demands of the position. Camp sued Bi-Lo under the ADA and the ADEA. The trial court granted summary judgment to Bi-Lo because its job description required Camp to lift more than 35 pounds, and was therefore an essential function of the job. Because Camp could not perform that function, he was not qualified for the position.

The Sixth Circuit reversed. Bi-Lo relied on its written job description to show that the ability to lift more than 35 pounds was essential even though that description did not exist when Camp began employment. Bi-Lo also relied on an opinion from HR that heavy lifting was essential. Camp, however, produced testimony from supervisor Bishop that it was not essential: specifically, heavy lifting was “only a very small part of the work done by the third shift stock crew.” The employees who worked closely with Camp agreed that heavy lifting was not an important part of the job. In addition, the consequences from Camp’s disability did not place an innocent person’s life at risk, cause undue hardship, or endanger a colleague. Camp’s coworkers also testified that it was not a problem to assign work in a way that allowed them to finish on time. Even if the ability to lift 35 pounds was an essential function of the job, there was evidence that Camp was qualified with an accommodation, and that such a reasonable accommodation—dividing the work in a way that Camp did not have to do heavy lifting—would not cause an undue hardship or disrupt business operations. Similarly, on the ADEA claim, there was a disputed issue of fact about whether Camp was qualified for the position; a reasonable jury could infer from Bi-Lo’s statement about Camp’s ability to draw social security benefits that Bi-Lo dismissed Camp because of his age.

This is general legal information and is not offered as specific legal advice.  Do not rely on this information to make decisions about your rights.  If you feel that you have been wrongfully terminated because of a health condition or disability, please contact an attorney.

Camp v. Bi-Lo, LLC, ___ Fed. Appx. ___ (6th Cir., Oct. 21, 2016)

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