For many employers, job descriptions are developed for one paramount purpose – to be used in job advertisements, or job postings, to attract the largest pool possible of well-qualified applicants. This effort is important and poorly written or overly generic job descriptions frequently lead to a less than stellar group of applicants qualified for the position in question. A wealth of employer resources have been developed over time to assist in writing job descriptions that best serve the purpose of attracting well-qualified candidates.
Legal compliance
There is however another critical function that a job description plays. A well-written and comprehensive job description provide a platform for a job posting that fully complies with the legal requirements imposed by the Americans With Disabilities Act (ADA). Enacted in 1990, the ADA, among other things, makes it unlawful to discriminate against people with disabilities in all forms of employment activities.
In addition to practices with current employees such as promotions and terminations of employment, the ADA applies to pre-employment actions in recruitment and hiring. Penalties for violation of the ADA in any phase of the employment process can result in the imposition of employer fines. These can be as high as $75,000 for initial violations and up to $150,000 for subsequent violations.
The ADA does not require an employer to recruit or hire every person, even otherwise qualified people with disabilities. The Act does, however, prohibit discrimination against an applicant with a “substantial impairment” who is able to perform the “essential functions” of a job either with or without “reasonable accommodation”.
The Equal Employment Opportunity Commission (“EEOC”) is our governmental entity responsible for enforcing the ADA in regards to employment. The EEOC provides a clearinghouse of sorts in helping determine which claims may be appropriate for separate private lawsuits. In assessing whether or not the ADA has been violated during the hiring process, the EEOC looks to employer job descriptions as a critical piece of evidence. Therefore, a well-written job description and job posting are in fact important both as a recruiting tool and legal shield.
Factors to include in a job ADA compliant job posting
A well-crafted and compliant job posting should address the specific ADA requirements outlined above. Though the specific language of the posting may vary depending upon the nature of the position and employer preferences, there are certain key areas that should be considered and addressed in the underlying job description and included in some form in the posting.
Reasonable accommodation statement
A reasonable accommodation is any adjustment to how a job can be performed or changes to the work environment that will allow an otherwise qualified person with a disability to perform the essential functions of the position as well as fully participate in the application and interviewing process. A reasonable accommodation statement is an employer’s opportunity to put its best foot forward and essentially state that the employer is aware of and fully compliant with the requirements of the ADA.
The specific language can certainly vary but the following example of a statement of reasonable accommodation captures these requirements:
(Company) is committed to the full inclusion of all qualified individuals. In keeping with our our commitment, (Company) will take the steps to assure that people with disabilities are provided reasonable accommodations. Accordingly, if reasonable accommodation is required to fully participate in the job application or interview process, to perform the essential functions of the position, and/or to receive all other benefits and privileges of employment, please contact (Company representative with phone and/or email address)
Essential functions statement
Essential functions are “the basic job duties that an employee must be able to perform” with or without reasonable accommodation. In preparing a job description and subsequent job posting it is important to first analyze the position and identify those tasks or functions which are essential to the job’s performance. Questions to ask when deciding what is or is not an essential function include:
- Does the job exist to perform the particular function?
- How many employees are available to perform the function or to whom the performance of the function can be apportioned?
- What degree of skill or expertise is necessary to perform the function?
Remember that if the EEOC is investigating a claim of discrimination, it will examine your decisions in identifying those functions which are essential. A written job description developed prior to a job posting will be reviewed by the EEOC and considered evidence of a job’s essential functions.
Physical demands/requirements
Certain positions require that applicants meet specific physical criteria. These demands can include an ability to lift or move items weighing a certain amount, to sit or stand for durations of time, or to climb stairs or ladders. In preparing a statement to this effect it is important to qualify these requirements by noting how often the task is required, e,g. “occasionally”, “frequently”. Remember to narrow these physical demands descriptions to essential functions only. Broader application can unnecessarily limit persons with disabilities and potentially expose an employer to legal liability.
Descriptions of work conditions and environments
This is another opportunity for employers to narrow the description of a position in order to avoid surprises when an applicant learns later of a job condition that prevents performance. Examples of conditions to cite in the job posting include:
- The position requires work at irregular hours, e.g. nights and weekends, overtime, alternating shifts;
- Working in trying conditions such as outside, during challenging weather conditions, or in hazardous environments;
Conclusion
A quality job description and corresponding posting which both attract the best candidates for a position and places an employer on solid footing with the ADA does not come about by accident. Employers who successfully and consistently develop strong, compliant job postings have also provided guidance in this regard with well-written human resource policies and training.
The ADA does not require that a company prepare, maintain, and update job descriptions when a position’s requirements change. However, this is certainly the recommended practice. Including the suggestions described here will achieve complementary goals. A thoughtful and well-written job description and posting taking these factors into consideration will:
- Define clearly the qualities and skills an employer is looking for in a job candidate;
- Permit applicants to accurately determine if they have the requisite job qualifications;
- Enable persons with disabilities to understand how an otherwise unavailable position might be open to them; and
- Comply with the law.
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