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September 04, 2012
Job description FAQs: Physical requirements, changes to job descriptions, and concerns about discrimination

If done right, job descriptions keep managers, supervisors, and employees on track. They can also boost employee morale and create a more motivated workforce. However, job descriptions can also create confusion if not handled properly, or, worse, put the employer at risk for discrimination claims.

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In a recent BLR webinar, Michelle Lee Flores and Tamara I. Devitt outlined some guidance on creating effective job descriptions that can keep employers out of trouble. After the webinar, they lent their expertise to answer questions from the participants. Topics included the listing of physical requirements, the implications of changes to job descriptions, and concerns regarding disabilities and discrimination.

Q. Given that we should list all of the essential functions in the job description, can we list the physical requirements in a separate section and still have them be considered essential to the job?

A. Yes, physical requirements could be a separate section with a separate heading. I would, however, make sure that those are referenced in the essential functions section. So, if we have a separate section for physical demands, then we should list an essential function that specifies that the person is required to perform the items shown as physical demands. Basically, any physical requirement should be specifically identified as an essential function directly or through this type of reference.

Q. I have recently seen an increase in ADA claims related to mental health rather than physical disabilities. Can you provide any advice on identifying the mental-health-related essential functions for a particular job?

A. Some of those descriptions and tasks might be less tangible. However, you could list requirements such as being courteous and professional. Certainly you cannot include any type of language that would be discriminatory; you certainly can’t require a certain state of mental health, for example. In general, we need to focus on the tasks, but requiring professionalism is appropriate. It is a trickier issue to deal with than physical requirements.

Q. Can we change a job description during the applicant search?

A. It could be dangerous if you’re changing it and you change it so that it impacts someone you’ve already interviewed. That could be seen as discriminatory or as if you’re modifying it in light of some physical or mental disability associated with someone you’ve already interviewed and are not going to hire. However, if you can point to some specific business reason for the change that is completely unrelated to the applicants, then it may be okay – but be sure it can be justified.

Q. When recruiting, job ads are typically quite different than the whole job description. What critical information do you recommend be included in a job ad without posting the entire job description?

A. It’s true that they’re often quite different, and in fact it wouldn’t be recommended to post the entire job description in an ad. However, the summary is often helpful. The important thing is to be consistent. The ads will likely have different buzzwords and other things required to attract talent, but the concern would be any type of inconsistency or language that could be construed as discriminatory.

Q. When outlining knowledge, skills, and experience required, can it be discriminatory to require a high school degree?

A. It depends on the job. Any type of qualification must be justified or the employer is going to be vulnerable to a discrimination claim if the description is found to potentially adversely impact any type of protected category. You must be able to show why the requirement ties to the job. If you can tie the requirement to the job, it shouldn’t be a problem. Even if a high school level of qualification can be tied to the job, it may be safer to say "a high school diploma or equivalent," which gives flexibility.

Q. What if we change the reporting manager from the one listed in the job description?

A. That’s a good trigger to update the job description. Do you have to do it immediately? No. But it’s a good practice to do it, especially if this change represents an entirely different reporting structure.

For more information on creating effective job descriptions that give you legal protections, order the webinar recording of "Make Job Descriptions ADA-Ready: California HR’s How-To for Defining Essential Functions." To register for a future webinar, visit http://catalog.blr.com/audio.

Michelle Lee Flores is a partner in the Los Angeles office of Fisher & Phillips LLP. (www.laborlawyers.com) She focuses her practice on all aspects of employment litigation including jury and bench trials; arbitration; mediation and pre-litigation negotiations; sex, race, religion, age and disability harassment and discrimination; wage and hour violations including class actions; and wrongful termination.

Tamara I. Devitt is the managing partner in the Los Angeles office of Fisher & Phillips LLP. Her practice focuses on representing employers against claims of discrimination, unlawful harassment, wrongful termination, unfair business practices, and wage and hour-related issues.

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