By Kevin Fritz and Erin Dougherty Foley

Seyfarth Synopsis: Athleisure company is rightfully able to terminate the employment of individual with physical limitations, despite that individual’s ability to delegate such functions of her position. See Tonyan v. Dunham’s Athleisure Corp., No. 19-2939 (7th Cir. 2020).

Angela Tonyan was employed by Dunham’s Athleisure Corp. as a store manager. She was fired when, after a shoulder injury, she could no longer perform physical tasks such as lifting and reaching. Indeed, her doctor imposed permanent lifting and reaching restrictions.

As usually goes, Tonyan argued that physical tasks weren’t an essential part of her job with the retailer. But the lower court and Seventh Circuit panel disagreed, finding that job descriptions in Tonyan’s case record describe physical tasks — sometimes involving lifting items weighing up to 50 pounds or more — as essential functions of her position. And even though physical tasks only took up 30% of her work day, Illinois and Seventh Circuit precedent on the issue has consistently found that an essential function does not need to encompass the majority of an employee’s time, or even a significant amount of time.

Ultimately, Tonyan lost her case for two reasons:

First, she never disputed that the descriptions were created through a detailed process or that the descriptions reflected the actual experience of a store manager in Dunham’s stores. Nor could she. After all, the Dunham’s store manager description she signed in August 2011 says her job’s essential functions include constantly reaching outward, frequently lifting or otherwise handling items up to 50 pounds and occasionally lifting goods even heavier than that.

Second, the court opined something nuanced in this case: the ability to delegate a task does not necessarily render the task not-essential. Interestingly, Tonyan’s argument that physical tasks were not essential because of the ability to delegate did not hold water. The lower court and Seventh Circuit panel reasoned that the tools available to delegate essential tasks were always available, with or without physical limitation, but just because they were available does not mean that it would be appropriate to delegate these tasks to other employees, and deem them non-essential.

These reasons, combined with a smattering of other evidence that Dunham’s expects its managers to perform physical tasks as part of its efforts to keep labor costs low, led to the holding that a permanent lifting restriction can impact an individual’s ability to manage a retail store, despite the ability to delegate physical tasks.

So what does this ruling tell us?  Well first, it is an excellent reminder to ensure that job descriptions are up-to-date.  If a two pound lifting requirement is actually an essential function of the position, employers should make sure that this is documented accurately in the job description.  Additionally, consider having employees sign off on job descriptions at various times throughout the employment relationship – including upon hire, during reviews/promotion opportunities, and in conjunction with annual reviews.

If you have any questions on these topics, please contact the authors, your Seyfarth Attorney, or any member of Seyfarth Shaw’s Absence Management and Accommodations Team.