An Administrator's Guide to California Private School Law

Chapter 9 – Interactive Process: Employees and Students

For example, if a school were considering hiring a paraplegic as a math teacher, the school would first consider his or her skills and knowledge of principles, theories, methods, techniques, and strategies pertaining to the teaching and instruction of mathematics. The school would also consider the applicant’s education and training in this area. If the paraplegic applicant met these requirements, and was given a conditional job offer, the employer would next consider what the essential functions of the job are and if the applicant could perform those functions with or without reasonable accommodation. 2. E SSENTIAL F UNCTIONS O F T HE P OSITION The FEHA and the ADA prohibit employers from disqualifying job applicants or employees because of their inability to perform marginal or nonessential job functions. The employer cannot refuse to hire an applicant or refuse to continue to employ a current employee for a position based on his or her disability unless the employer can show that a job function to be performed is essential to the position. 1458 The frequency with which a function is performed helps determine if it is essential. For example, a school could not successfully argue that the ability to lift 70 pounds was an essential function for the position of maintenance worker where there was no evidence that all maintenance workers were actually required to lift that much weight on a regular basis. 1459 However, frequency is not determinative. If a function is critical, it is essential even if infrequently used. For example, it may be essential for a first grade teacher to have the capacity to lift one of his or her students in the event of an emergency, such as a fire in the classroom. Therefore, analyzing whether a job function is essential is also dependent on the type of position in question. In determining whether a job function is essential, the employer should ask: Would removing the job function fundamentally alter the position? The answer will generally include consideration of one or more of the following factors:

 First Factor: Does the position exist to perform a particular function? For example, the position of a telephone receptionist/operator requires that the individual performing that job be able to answer the telephones and hear the callers’ questions and comments. Therefore, one could not remove the essential function of being able to hear the conversations of those calling since that is the sole reason for the position’s existence.  Second Factor: Are there other employees available who could perform the job function? 1460 For example, an epileptic maintenance worker whose condition prevents him from driving would be able to perform the essential function of the job so long as other employees are able to perform those functions that require driving.

Therefore, if there are insufficient employees to whom a job function can be distributed, the function will be seen as an essential function for the employee to perform. In schools with a large number of staff members, the function may not be deemed essential.

An Administrator’s Guide to California Private School Law ©2019 Liebert Cassidy Whitmore 332