Law Office of David Miklas, P.A.

Labor & Employment law - Employers only

Is your job description hurting your chance of defending a discrimination claim?

An employee worked as a customer service representative for a packing and manufacturing company.  Part of her job duties required her to work on the production floor and the remainder of her job duties were performed in the administrative area.  The employee became pregnant, and her pregnancy was complicated by hyperemesis gravidarum, a condition characterized by nausea and severe vomiting, and by changes in saliva, including ptyalism, or excessive saliva. She took leave, but when she returned to work she informed her employer that she found that she could prevent vomiting by spitting regularly and not swallowing saliva. Therefore, to manage her medical condition when she returned to work, she brought a cup with her to spit saliva into.

On the morning of her return, her manager told her she could not use a spit cup if she wanted to continue working there, citing sanitation and cleanliness requirements for its production area.  Although the rest of her job was in the administrative area, where use of a spit cup was not prohibited, the employer refused to let her use the spit cup. The employee said she could still work and do her primarily clerical job, but the employer did not offer or discuss any accommodations to retain her.

As a result, her employment was terminated.

She sued, claiming in part that the employer violated the Florida Civil Rights Act (“FCRA”) by refusing to provide her with a reasonable accommodation. After a jury trial, the jury found the employer liable for violating the FCRA.

It found that a reasonable accommodation existed that would have allowed the employee to perform the essential functions of the job and would not have imposed an undue hardship on the employer’s business. The jury also determined that the employer failed to provide a reasonable accommodation or engage in good-faith efforts to  accommodate the employee.  The employer appealed the court’s decision to deny its motions for judgment as a matter of law or, alternatively, for a new trial.

On October 27, 2022 the 11th Circuit Court of Appeals issued its decision, holding that the judgment against the employer on the employee’s failure-to-accommodate claim under the Florida Civil Rights Act was proper, as a reasonable jury could have found that being in a production area was not an essential function of the employee’s job, and witnesses testified that the position was primarily clerical and involved no more than 20% of her time in the production area. Brown v. Advanced Concept Innovations, LLC, No. 21-11963, 2022 U.S. App. LEXIS 29956, at *7 (11th Cir. Oct. 27, 2022).

The Court of Appeals also noted that the employer’s job description for the position, did not list being in the production area among the job’s “Essential Duties and Responsibilities.”

This new case should remind Florida employers that if your job description lists “essential” functions, then you better make sure that you include everything that you really think is essential.  You may not be able to argue later on that something not included on that list is essential.

 Also, it appears that courts may that if an employee spends less than 20% of their time performing that task, it may not be essential.  This latter point is unclear and will likely be clarified in future litigation.

If you need any assistance in handling claims of discrimination or retaliation concerning your Florida business or if you need guidance in any employment policies, please promptly email the Law Office of David Miklas, P.A. or call us at 1-772-465-5111.

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