The U.S. Equal Employment Opportunity Commission (EEOC) sued Virginia International Terminals, LLC (VIT), a marine terminal operator in Norfolk, Virginia, for disability discrimination.

The EEOC alleges that VIT violated federal law by refusing to allow an employee to return to his position as a truck driver after medical treatment for a heart condition. Despite being cleared by his cardiologist to return to work without restrictions, VIT barred the complainant from driving his truck based on his disability.

The EEOC filed the lawsuit after attempting to reach a voluntary settlement through its conciliation process. https://www.eeoc.gov/newsroom/virginia-international-terminals-sued-eeoc-disability-discrimination

Commentary

The EEOC claims the actions of VIT violated the Americans with Disabilities Act (ADA), which protects employees and applicants from workplace discrimination based on disabilities.

VIT's position is unclear, because the EEOC issued the press release. However, the press release contains some clues about VIT's position:

According to the EEOC's lawsuit, the employee, who previously worked at Norfolk International Terminals as a hustler truck driver, was hospitalized because of a cardiac event and received an implantable cardioverter defibrillator. Although he was released by his cardiologist to return to work without restriction, the company would not allow him to drive a hustler truck because of his disability. A hustler truck is used to move shipping containers around the private roads of the marine terminal at a maximum speed of 20 miles per hour. The hustler truck position does not require a commercial driver's license and hustler trucks do not operate on public roads. The EEOC alleges that VIT unlawfully imposed a permanent exclusion of the driver from his job as a hustler driver, and instead offered him work that paid less and/or provided fewer hours.

The EEOC's position is that the employee was cleared by his doctor to return to his job as a "hustler" driver.

VIT offered the employee a different job that paid less, which indicates that VIT did not believe the employee could meet the essential functions to perform the position of hustler truck driver.  

If that is the case, VIT should have engaged in the interactive process and made sure the driver's physician reviewed the driver's written job description and released him for every job function, either without a restriction or with a recommended reasonable accommodation.

Like with most return-to-work claims, the evidentiary centerpiece will be the job description because it provides the essential functions of the hustler driver position. A comprehensive job description details the physical, mental, and other requirements to perform a job, as well as other aspects.

There is no one-size-fits-all job description, and no legal requirement to have one. However, it is one of the most useful risk management tools an employer can have and is well worth the time and effort required to create one for each position in your organization.

The following is a checklist for inclusions to consider in a job description:

• A job description should be written
• A job description should be regularly reviewed for accuracy
  • Include a statement that duties and responsibilities change and develop, so the job description is subject to changes based on business necessity
• Purpose of the job
• Essential job functions
• Expected production results – quality and quantity
  • The effect on the organization when production is not met
• Knowledge and critical skills
  • Specific training required
  • Licenses/certifications required
• Physical and mental demands
• Social factors and demands
• Job setting
  • Equipment required
  • Travel requirements
    • Include methods
  • Environmental factors
    • Hazards and steps to eliminate
• Describe regular attendance and timeliness as essential functions of any jobs that require regular and punctual employee presence
  • Address unusual events – i.e., availability for evening meetings on Wednesdays (is remote attendance allowed?)
• Job title/job code/department
• Exempt or non-exempt from overtime
  • Overtime frequency
     

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