The Oklahoma Bar Journal September 2025

essential, 17 2) written job descrip tions prepared before advertising or interviewing applicants for the job, 18 3) the amount of time spent on the job performing the function, 19 4) the consequences of not requiring the incumbent to perform the function, 20 5) the work experience of past incumbents in the job 21 and 6) the current work experience of incumbents in similar jobs. 22 Courts evaluate an employ er’s identification of essential functions under the ADA by giving considerable weight to the employer’s judgment, especially when supported by a written job description. 23 However, this deference is not absolute, and courts may question or reject an employer’s determination if it appears to be inconsistent with business necessity or if the func tion is deemed marginal rather than essential. 24 The 10th Circuit places considerable weight on the employer’s judgment concerning what functions are essential, pro vided that the employer’s descrip tion is job-related, uniformly enforced and consistent with busi ness necessity. 25 Courts are gener ally reluctant to second-guess the employer’s business judgments in defining essential functions. 26 However, this deference is not limitless, as an employer cannot arbitrarily designate every condi tion of employment as an essential function, and courts may question or reject an employer’s determi nation if it appears to be inconsis tent with business necessity or if the function is deemed marginal rather than essential. 27 In summary, the definition of an “essential function” under the ADA in the 10th Circuit is the fundamental job duties of the employment position the

individual with a disability holds or desires, excluding marginal functions. The determination involves a factual inquiry consid ering the employer’s judgment, written job descriptions, time spent on the function, conse quences of not performing the function and the work experience of incumbents. Courts generally defer to the employer’s judgment, provided it is job-related, uni formly enforced and consistent with business necessity. 28 What Is an ‘Interactive Discussion’? The interactive process required to determine a reasonable accom modation under the ADA involves a collaborative effort between the employer and the employee. The 10th Circuit has consistently empha sized that this process necessitates good faith communications from both parties to identify the employ ee’s limitations and explore poten tial accommodations, as each side possesses different information crit ical to determining whether there is a reasonable accommodation that might permit the disabled employee to perform the essential functions of their job. 29 The employer’s obligation to engage in this process is triggered when the employee provides notice of their disability and any resulting limitations. 30 As noted, both the employer and the employee must partici pate in this interactive discussion. The employer has an affirmative obligation to undertake a good faith back-and-forth process with the employee, aiming to identify the employee’s precise limitations and attempting to find a reasonable accommodation for those limita tions. 31 This duty includes meeting with the employee, requesting information about the employee’s

leave, however, as a reasonable accommodation. 11 Further, if it is an “undue hardship” for the employer, it is not considered a reasonable accommodation. The statute defines undue hardship as “an action requiring significant difficulty or expense,” considering several factors, such as the nature and cost of the accommodation, the overall financial resources of the facility, the number of persons employed and the impact on the operation of the facility. 12 The 10th Circuit has emphasized that the hardship must be real rather than speculative, and the employer is on stronger ground when it has attempted various methods of accommodation and can point to actual hardships that resulted. 13 functions must be accommodated. If the function is not essential, no accommodation is necessary. First, an employee must be qualified for the position. To be qualified, an employee must be able to perform the essential functions of their job, or the job desired, with or without accommodations. 14 The definition of an “essential function” under the ADA is primarily derived from the regulations and case law interpret ing the statute. The term “essential functions” is defined as “the fun damental job duties of the employ ment position the individual with a disability holds or desires.” 15 This definition explicitly excludes mar ginal functions of the position. 16 The determination of whether a particular job function is essen tial involves a factual inquiry that considers several factors. These factors include but are not neces sarily limited to: 1) the employer’s judgment as to which functions are What Is an ‘Essential Function’? Under the ADA, only essential

Statements or opinions expressed in the Oklahoma Bar Journal are those of the authors and do not necessarily reflect those of the Oklahoma Bar Association, its officers, Board of Governors, Board of Editors or staff.

SEPTEMBER 2025 | 11

THE OKLAHOMA BAR JOURNAL