Guest Editor – Miriam Hertz

Under the law, an employer is allowed to ask a job candidate “Do you need any reasonable accommodations to perform the essential functions of this job?”  I have come across employers who state or list “must be able to walk” and “must be able to see” as the essential job functions of a position.  The truth is that walking and seeing are essential job functions of only a few jobs, such as some in construction work.  So, the question in this case becomes why does the employer think she needs an employee who can walk and see? 

     For example, is it necessary for the employee in this particular position to move or ambulate through a narrow, uneven space?  This is possible but unlikely.  It is more likely that the position involves something like getting a heavy item off a high shelf.  In this case, “getting a heavy item off a high shelf” is the purported essential job function and not “must be able to walk” or “must be able to see.”  For the safety and convenience of all employees, however, it might be good to remove the heavy item from the high shelf.  Or accommodations for disability could be a mechanical device moving the item from (and back to) the high shelf or an able-bodied person lifting the item, and not only are these possible accommodations, but one of them is probably reasonable in terms of cost and effort to the employer.  In this way, according to legal definition, a “reasonable accommodation” is born.

     So, what is the remarkable genius of the concepts of “reasonable accommodation” and “essential job function”? These concepts not only defend from discrimination people with disabilities but also protect other groups. It wasn’t that long ago that (at the time male) bosses expected their (at the time female) secretaries to bring them coffee. If “bring the boss coffee” were listed nowadays as an essential job function, this would be a red flag for employment discrimination on the basis of sex. Bosses can get their own darn coffee. Likewise, the accommodation of onsite childcare can assist some parents (usually mothers) to get and maintain employment. While not mandated reasonable accommodation under the law, onside childcare can still be an accommodation that assists a protected class.