NOTE: I'm posting this for Lou because he can't find the "ON" switch on his laptop. Direct all hostile retorts to him.
This week, the Third Circuit gave Hershey something to chew over on its way to trial, and it wasn’t milk chocolate. In an effort to minimize injuries caused by repetitive stress, Hershey began a rotation policy for its candy inspectors in 2001. The plaintiff, an inspector of York peppermint patties, refused to participate in rotations that aggravated her chronic back problems. Job rotations, that is. She did, however, offer to rotate to tables that accommodated her disability. Hershey refused. Shortly thereafter, the plaintiff went on disability, stating that she was unable to work in the plant. Two years later, she was fired.
The district court ruled in favor of Hershey, holding that the rotation was an essential function of the job and that an exemption from the rotation would create an unreasonable risk of increased injuries for plaintiff and her colleagues. The Third Circuit, however, disagreed and decided instead that whether the accommodation that the plaintiff had proposed was reasonable was for a jury to decide.
My immediate reaction to this case isn’t positive. One of the cornerstones of the ADA is that the employer gets to determine what is and isn’t essential to perform a job. As long as the employer consistently requires employees to do a certain task as part of the job, then the ADA doesn’t allow the court to rewrite job descriptions. To have it any other way would turn the courts into super personnel agencies, something no court wants to become.
But here, the court tells Hershey, in effect, “We don’t agree with your internal policy of requiring the ability to perform different tasks as part of the essential job requirements for the inspector position. We think you should make the job less demanding, irrespective of the fact that all the other inspectors have to meet this requirement.”
I hope the jurors like chocolate.
Turner v. Hershey Chocolate USA, No. 04-4674 (3d Cir. Mar. 20, 2006)