PJC Business

PJC 107.11

E MPLOYMENT

Savings Bank , 784 S.W.2d 672, 674–75 (Tex. 1990) (exceptions to coverage under statutory provisions are affirmative defenses). Federal law places the burden of prov ing “transitory and minor” on the defendant as an affirmative defense. See Willis v. Noble Environmental Power, LLC , 143 F. Supp. 3d 475, 484 (N.D. Tex. 2015) (citing 29 C.F.R. § 1630.15(f)). Qualified individual. Pursuant to Texas Labor Code section 21.105, disability based discrimination is actionable only when such discrimination occurs because of or on the basis of a physical or mental condition that does not impair an individual’s abil ity to reasonably perform a job. A qualified individual is an individual “who, with or without a reasonable accommodation, can perform the essential functions of the employment position that such individual holds or desires.” 42 U.S.C. §12111(8); City of Houston v. Proler , 437 S.W.3d 529, 532 (Tex. 2014) (quoting section 12111(8)). Although the TCHRA does not include a definition of “qualified individ ual,” among its purposes is “provid[ing] for the execution of the policies embodied in Title I of the [ADA].” Tex. Lab. Code § 21.001(3). There is often no dispute on whether the plaintiff is a qualified individual able to perform the job’s essential functions. If there is a dispute, the following question and instruction, based on 29 C.F.R. § 1630.2(n), may be used: QUESTION ______ Was Paul Payne able to perform the essential functions of the [ insert job position ] with or without reasonable accommodation? “Essential functions” means the fundamental job duties of the employment position the individual with a disability holds or desires. “Essential functions” does not include marginal functions of the posi tion. A job function may be considered essential for any of several reasons, including but not limited to the following: 1. The function may be essential because the reason the position exists is to perform that function; 2. The function may be essential because of the limited number of employees available among whom the performance of that job function can be distributed; and/or 3. The function may be highly specialized so that the incumbent in the position is hired for his or her expertise or ability to perform the particular function. In determining whether a particular function is essential, you may consider the following factors:

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