Company Doctor: Put it in writing or risk litigation

Last updated on May 13th, 2019 at 02:33 pm

In my first column, I wrote of the importance of job descriptions when it comes to executing a performance appraisal. The development and maintenance of job descriptions is also critical in many other areas of the human resource management.
Keeping your job descriptions current is necessary for job postings, conducting job interviews and for the preparation for performance appraisals. If this is true, then why do so many companies either fail to regularly update their job descriptions or have none at all?
Properly prepared job descriptions are an asset to any organization. They form the basis for your compensation program, interview questions, performance appraisal preparation and in some cases a defense against a discrimination claim.
Under the Americans with Disability Act (ADA), a position can be divided into essential and marginal job functions. Identification of a job’s essential job functions therefore is critical to analyzing an employer’s ADA obligations and employee and applicant’s rights under the ADA for a reasonable accommodation. In addition, they cannot delegate or reassign the marginal job elements, since they have not identified them.
An employee who cannot perform a job’s essential functions with or without a reasonable accommodation is not a qualified individual under the ADA and cannot state a discrimination claim against an employer.
An employer who refuses to hire or retain an individual who cannot perform a marginal job function with or without a reasonable accommodation violates the ADA.
How can you comply with that portion of the law, unless you have developed job descriptions? These descriptions form the basis of your job postings and classified advertisements.
So, what are the elements of a functional job description? Basically, job descriptions are divided into five segments: the job title, the job description, essential job elements, non-essential job elements and qualifications.
Let’s look at each of these segments separately.
* Job title – This is self-explanatory. It is the name you have assigned to the job, for example, manager of the customer service department.
* Job description – This should be a brief overview of the job duties and reporting structure. It should include to whom the employee reports to and one or more sentences that describe the job responsibilities. It should also state: "This is not an exhaustive listing of all job duties and is subject to change."
* Essential job elements – These are the job duties that the individual must be able to perform on a regular basis. Essential job duties can be performed with the aid of a reasonable accommodation (i.e., a special desk or chair). If an individual cannot perform any of the essential job requirements, even with a reasonable accommodation, you could elect not to hire them. It is important to include in this section the phrase, "Ability to maintain a positive attendance record." Being at work each day is an essential element of any job and should not be ignored.
* Non-essential job elements – These are non-critical job duties that can be assigned to another individual as a way of accommodating an ADA request. These tasks are related to the job description, but can be delegated on a daily basis to others, as required. Examples of these types of elements are as follows: authorizes the return of merchandise, authorizes credit memos, and maintains maximum coverage through proper scheduling of staff and mentors, and trains new supervisors within the department.
* Qualifications – This section is directly related to the two previous sections. You should not be listing a qualification that is not directly related to an essential or marginal job element. Under Title VII, you cannot require a qualification that is not a BFOQ, a bona fie occupational qualification. It could be interpreted that you required a qualification that was not related in order to eliminate members of a protected group. In simpler terms, you used that qualification to discriminate against that protected group. Examples of job qualifications are: a high school diploma or a GED, strong interpersonal skills and the ability to operate a computer using specific types of software packages.
Over the years, I have reviewed hundreds of job descriptions. I found many contained errors that could have resulted in discrimination claims. Unless you continually review and update your job descriptions, you put your company at risk.
Let’s assume you have decided to review and update your job descriptions.
The first step is to develop an outline that includes a description of each section and samples of the entries that should be found under that heading.
The next step is to develop a cover sheet that includes instructions on how to complete the form. The open question is, who should perform this review and update? The answer is, the immediate supervisor, with the assistance of their subordinates. The supervisor should have each employee complete the second and third sections of the form.
Then the supervisor should review the completed forms.
Once that review is complete, the supervisor should develop a description that includes all the duties listed by his employees for each position. This ‘draft’ form should be reviewed with the next level of management and human resources to ensure that it is complete, factual and in compliance with existing policy and procedures.
Once all duplication and scope creep (where employees are performing tasks outside their job) have been eliminated between jobs, the qualification section can be inserted.
After the insertion of the job qualifications and the description sections, upper management and human resources should again review the final draft. Once they sign off on the final drafts, it should be forwarded on to an attorney who is an employment specialist.
It is the attorney’s task to ensure that the final job description is in compliance with existing state and federal legislation.
The job descriptions then can be published and used in job screening, hiring and performance appraisals. By creating or updating you job descriptions, you have just reduced the level of risk to your firm to claims of discrimination in hiring, termination and compensation.
Cary Silverstein, MBA, is the president and CEO of Strategic Management Associates, LLC. Cary leads a group of seven consultants who provide services in strategic planning, marketing, market research, negotiations and conflict resolution program development with offices in Fox Point. He teaches graduate level courses at Keller Graduate School in Milwaukee and Waukesha. He also is a member of the COSBE Board of Directors at the MMAC. He can be reached at (414) 352-5140 or at
March, 4, 2005, Small Business Times, Milwaukee, WI

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Dr. Daniel A. Schroeder is President/CEO of Organization Development Consultants, Inc. (ODC). ODC serves regional and national clients from its offices in suburban Milwaukee. Additionally, he teaches in the Organizational Behavior and Leadership (bachelor’s) and Organization Development (master’s) programs at Edgewood College (Madison, WI), programs that he founded and for which he served as Program Director.

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