Disability and Age Discrimination Claims Reinstated

By Stefanie M. Renaud Nov 17, 2016

A Tennessee employee who was asked to take leave until he could collect Social Security and then terminated because of his lifting limitations may go forward with his Americans with Disabilities Act (ADA) and age discrimination claims, thanks to the 6th U.S. Circuit Court of Appeals.

Kenneth Camp was terminated by his grocery store employer, Bi-Lo LLC, after Bi-Lo discovered that his lifelong battle with scoliosis limited his ability to lift more than 35 pounds. Camp was employed by Bi-Lo, without incident, for 34 years as an overnight stocker, until March 2012. After the store director learned about Camp's limitation, Camp was placed on a leave of absence, pending medical verification. After confirming that Camp could not lift more than 35 pounds, Bi-Lo terminated his employment, arguing that lifting up to 60 pounds "frequently" was an "essential function" of his position.

Camp sued Bi-Lo for violating his rights under the ADA, the Age Discrimination in Employment Act and comparable Tennessee law. Under the ADA, an employer may not discriminate against a qualified person with a disability who can perform the "essential functions" of the position with or without reasonable accommodation.

[SHRM members-only how-to guide: How to Handle an Employee's Request for Accommodation]

The district court held in Bi-Lo's favor and dismissed all three claims, concluding that Camp was not a qualified person with a disability because he could not lift more than 35 pounds. Camp appealed to the 6th Circuit, which reinstated his claims, finding that there was a question of fact as to whether Camp was a qualified person with a disability.

In reversing the district court, the 6th Circuit concluded that a reasonable jury could find that Camp was a "qualified" individual, because it was not clear that:

  • Lifting more than 35 pounds was truly an essential function of Camp's position.
  • There was no reasonable accommodation that would permit him to perform his job duties.

When evaluating whether or not a duty is an essential function, courts look to:

  • The employer's judgment.
  • The written job description.
  • The amount of time spent performing the function.
  • The consequences of not requiring performance of the function.
  • The work experience of past incumbents of the position.
  • The current work experience of incumbents in similar jobs.

In its analysis, the court relied on testimony from Camp and two members of his overnight team that showed heavy lifting was not an essential function because it was only a small part of the job and that there were only a few items Camp could not lift. The court also noted that Camp successfully performed his duties for 34 years without incident.

The court was critical of Bi-Lo's reliance on a job description, written in 2007, which stated that the stock clerk must be able to lift 60 pounds. The court noted that no description existed from when Camp was hired, and none of the overnight team members had even seen the job description before litigation began.

The court then concluded that Bi-Lo had used the job description as a justification for terminating Camp, which, given Camp's supervisor's testimony that heavy lifting was not an essential function, convinced the court that the employer's reliance on the job description was not justified.

The overnight crew's testimony also revealed that, for several years, the crew had successfully used an informal accommodation arrangement that allowed Camp to avoid heavy lifting. Thus, the court held that Camp may have been a qualified person with a disability because he was able to perform the essential functions of his position with accommodation.

Further, because Bi-Lo could not point to any evidence showing that this accommodation had more than a minor effect on operations, and because Camp's position was not safety-sensitive, the court concluded that Bi-Lo could not show that this informal accommodation caused an "undue hardship."

Finally, the court also reinstated Camp's age discrimination claim, noting that his replacement was "substantially younger" and that certain comments regarding collecting Social Security could indicate age-based discrimination.

Camp v. Bi-Lo LLC, 6th Cir., No. 16-5080, 2016 BL 351005 (Oct. 21, 2016).

Professional Pointer: Whether a job duty is an essential function is not determined solely by the employer's judgment or job description. Employers should be cautious about terminating employees based on concerns that they cannot fulfill the essential functions of their position, unless the employer has explored the possibility of a reasonable accommodation.

Stefanie M. Renaud is an attorney with Skoler, Abbott & Presser PC, the Worklaw® Network member firm in Springfield, Mass. 

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