The issue in this case was whether an employer may be required under anti-discrimination law to modify a salesperson’s essential job function of generating new business as a reasonable accommodation to his or her disability. A three-judge panel of the First Circuit held that an underperforming salesperson with bi-polar disorder was entitled to a jury trial on his claim that his former employer, Liberty Mutual Insurance Co. (“Liberty”), failed to make a reasonable accommodation for his disability when it refused his request to service highly coveted mass marketing (“MM”) accounts, which would have substantially reduced his essential function of seeking out and securing new accounts. Liberty moved for a rehearing or hearing en banc before the First Circuit, asking the Court to reinstate the District Court’s grant of summary judgment to Liberty on this claim.
NELF filed an amicus brief in support of Liberty’s en banc petition, arguing that the panel’s decision erodes the established bright-line rule that a reasonable accommodation does not require modifying the essential functions of a job. NELF argued that the First Circuit’s opinion weakened this established rule in two ways. First, the opinion failed altogether to invoke the rule as a clear limit on Liberty’s affirmative duties when making a reasonable accommodation for Tobin’s alleged disability. Secondly, the opinion failed to recognize that the selection criteria for assignment to the coveted MM accounts, which Tobin requested as a reasonable accommodation, serve to define the essential functions of a salesperson’s job. In particular, Liberty had argued on summary judgment that a salesperson must perform the essential function of generating new business to Liberty’s satisfaction before being considered for assignment to MM accounts. The opinion failed to recognize that requiring Liberty to assign MM accounts to an underperforming salesperson like Tobin would eliminate the essential function of generating new business, contrary to well-settled law. The panel’s decision suggested that, despite a company’s legitimate business need for an employee to perform certain essential tasks such as generating new business, the ADA may nevertheless require the employer to alter or waive these tasks with respect to certain employees even though they were hired expressly to perform them. The panel’s opinion thereby appeared to remove the employer’s prerogative to define the essential functions of a job. The specter of potential and uncertain liability arising from such a change in the law would be harmful to businesses and, by extension, to their employees. NELF argued that if it were not corrected, the panel’s decision could lead to confusion concerning an employer’s affirmative duties under reasonable accommodation law. The decision as written could impede an employer’s ability to make routine business decisions regarding the discharge of underperforming employees and could encourage courts to assume the inappropriate role of super-managers of a company’s human relations department.
On December 23, 2005, the First Circuit granted Liberty’s motion for a rehearing and reissued its decision. Although the First Circuit did not alter its conclusion on the merits, it addressed NELF’s request for clarification by clearly stating in the reissued decision that (a) Liberty was not required to accommodate Tobin in a way that would have altered his job functions and (b) that Liberty will prevail at trial if it proves that Tobin’s failure to make sales outside of MM accounts constituted a failure to fulfill an essential function of the job.