Write a Lawsuit-Proof Job Description

Small business owners must include non-discriminatory, descriptive, and ADA-compliant language in job descriptions to help protect themselves from a lawsuit.

Paint professionals must carefully choose the language they use in job descriptions to avoid legal trouble. Employers can be held liable for non-descriptive, unknowingly discriminatory language, and language that does not comply with the Americans with Disabilities Act in a job description.

The issue of a vague job description is reflected in successful lawsuits against employers. One such case in Florida, Snead v. Florida Agricultural and Mechanical University Board of Trustees, rested on the employer’s job description, which did not reference a 12-hour shift in the job posting.

“When an employer changed the [employee’s] standard working shifts from eight hours per day to 12, the employee began experiencing high blood pressure symptoms,” says David Miklas, a labor and employment attorney at the Law Office of David Miklas in Port St. Lucie, Florida. “After the employee’s doctor identified the 12-hour shifts as the culprit, the employee requested to work shorter shifts. The employer refused, and the employee retired.”

The employee sued the employer for violating the ADA. A jury later found the employer liable and awarded the employee $142,268 for lost wages and benefits and $108,810 for mental and emotional anguish, Miklas says.

The case went on to the 11th Circuit Court of Appeals, which ruled against the employer, according to Miklas. The Court of Appeals found that the employee could perform the job’s essential duties that were listed in the job description. Shift length was not listed, and thus, the court found the employer to be at fault.

Here’s how to write effective job descriptions that may help you avoid legal troubles.

Be ADA Compliant

To be ADA compliant, it is important for a small business owner to define what the “essential functions” of the job are when writing the job description. In that way, potential employees know what will be required and, if hired, whether or not they will need to request a reasonable accommodation in order to perform the job.

“If the worker cannot perform the ‘essential functions’ of the job, the first place that the courts look to is what the ‘essential functions’ of the job is in the job description,” Miklas says.

Add Non-discriminatory Criteria

This is the criteria that is related to the job’s requirements, and does not exclude—directly or indirectly—people who are in a protected class as defined by federal and state laws, says Andrea Paris, employment and business litigation attorney at the Law Office of Andrea W. S. Paris in Newport Beach, California.

Paris explains how language in a job description can be unintentionally discriminatory.

“Requiring that you have received your B.A. in the last 20 years may not be discriminatory on its face, but it has a discriminatory impact since the youngest age that most people receive their B.A. [is] at around 20 years old,” Paris says. “Requiring that applicants receive their degree in the last 20 years has the effect of excluding most people who are 40 and older.”

Follow Basic Rules

Paris says a good job description will meet three requirements:

1. A clear outline of the duties and responsibilities of the position;

2. Support of an employee’s exempt classification. Federal and state laws use a duties and salary test when determining whether an employee is properly classified as exempt, so job descriptions that clearly list duties that meet the test will be invaluable in any challenge that an employee is misclassified;

3. Distinguish between essential and non-essential duties.

Following these guidelines may help protect an employer from a potential lawsuit.

PPT editor’s note: Always seek component legal advice before changing employee policies.


Contact Information

National Federation of Independent Businesses
National Federation of Independent Businesses

Nashville, TN,

tele: 615-872-5800

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