Modifying essential job functions not necessary under act
Published 10/21/05

A recent New Hampshire Federal Court decision emphasized the Americans with Disabilities Act (" ADA ") does not require an employer to modify an essential job function to accommodate a disabled employee.

The Court on October 18, 2005 in the case of Gerald R. Hess v. Rochester School District summarily ruled in favor of the School District as to the various counts brought by Hess who as a school teacher who was suspended and thereafter his contract was not renewed. Mr. Hess claimed, among other things, that he was discriminated against because of Attention Deficit Hyperactivity Disorder ("ADHD") and anxiety.

Hess was first employed by the Rochester School District for the 1986-1987 school years. He taught computer education at Rochester Middle School from 1986 through the 2000-2001 school years. He was successful in that position during the tenure of the previous principal and the assistant principal.

Hess was diagnosed with Attention Deficit Disorder ("ADD") in 1995 and with ADHD and anxiety in 2000. He began treating with psychiatrist in September 2000. Both the Rochester Middle School principal and superintendent were aware of Hess' ADD diagnosis. Hess' psychiatrist stated that his ADHD and anxiety caused inattention, hyperactivity and impulsiveness, impaired his ability to learn new aspects of computer teaching without assistance, and caused him to be very forgetful.

In the Fall of 2001, Hess was moved to the Structured Thought and Review Subjects ("STARS") program where he worked with students who had failed a class the previous year and were required to attend the program for additional assistance. On May 7, 2002, Hess requested in writing that the principal move him back to teaching computer education because he was discouraged by the lack of progress made by the STARS students and he was "burned out" by the workload and his ADD.

The principal explained that Hess could not return to computer education because his position had been eliminated. Hess on several occasions left the students of the STARS program unattended providing various excuses, and at one point he was accused by a female student of slapping her because she was laughing loudly. Hess agreed with the student's version of events except that he said that he had not slapped her but only "cupped" his hand along her face to get her attention because he was trying to quiet her since she had a very loud voice that hurt his ears and startled him.

Hess also asserted that a reasonable accommodation for him was to allow him to use what he called child diversity tools which included allowing the students instead of being taught by him to play Nintendo and listen to music with headphones during class to reduce student disruptive behavior.

The Court first noted that a mere ADD or ADHD diagnosis is not sufficient to establish disability under the ADA but also noted that an essential function of the job of teaching is to property supervise students and to actually teach. Proper supervision is essential to ensure that the students are not allowed to be in dangerous or potentially dangerous situations while at school and that Hess' strategy of using computer games and music to pacify students is not teaching.

The Court found that Hess ignored the School District 's requirement that he teach the students rather than pacify them by allowing them to listen to music and play games for as much as half the class time. Contrary to Hess' view of the impact of ADA , the Court noted that an employer is under no obligation to modify an essential job function to accommodate a disabled employee.

This ruling is a reminder that even if a worker is able to show that he is disabled under the ADA , this does not give him the right not to do his job. Simply put, an essential function of a teacher's job is to teach and that essential function cannot be removed by the teacher's disability nor the alleged poor caliber of his students.

J. Daniel Marr is a director and shareholder at Hamblett & Kerrigan, P.A. His legal practice includes counseling businesses and business persons on a variety of legal issues, including employment, and advocating on their behalf. You can reach Attorney Marr by e-mail at: dmarr@hamker.com

This information is general information and may not reflect the most current legal developments, verdicts or settlements. The information provided should not be relied upon as an indication of the actual state of the law or of future developments. The information contained on the Hamblett & Kerrigan website is for informational purposes only and does not constitute legal advice. If the information referenced may be of legal importance to you, you should consult with an attorney to provide you with legal guidance and opinion as the the effect of the current law upon your situation.