(dissenting) — The majority has confused “work load” with “essential function.” Washington’s Law Against Discrimination, chapter 49.60 RCW, requires an employer to reasonably accommodate the limitations of a disabled employee unless the employer can demonstrate that such accommodation would result in an undue hardship to the employer. Pulcino v. Fed. Express Corp., 141 Wn.2d 629, 639, 9 P.3d 787 (2000). To allow employers as a matter of law to define such heavy work loads to be an “essential function” of the job such that the work can be accomplished only by working excessive hours would eviscerate our statutory protection of disabled employees. Unlike the majority, I believe that whether a 60 to 80 hour workweek is an essential function of this job is a question of fact, best left to the jury. Therefore, I respectfully dissent.
It should be a factual, not legal, question whether long hours are an essential function of a job. Whether an employment condition requiring 60 to 80 hours per week is an essential function of a particular job, or whether an employer is merely increasing profits at the detriment of employees like Thomas Davis, is a question of fact. Stated another way, whether the employer is merely asking its employee to do the work of two people or whether factors such as fluctuations in workload, travel, the need for on call availability, and other similar factors require consistent long hours is best left for the trier of fact.
*551I agree with the majority on many points.12 I agree that extended hours may be an essential function of a particular job. Majority at 534 (citing Davis v. Fla. Power & Light Co., 205 F.3d 1301, 1306 (11th Cir. 2000) (hereinafter FP&L) (holding that four hours per week average overtime could be an essential function of the job as an electricity lineman at least when employee agreed to overtime as a condition of employment)). However, an employer’s “culture” of requiring long hours of employment, standing alone, is never an essential element of a job. The long hours must be related to specific requirement of the work performed, not the other way around. For example, snowplow operators and emergency rescue team members may have to work very long hours during snowstorms and emergencies. Plowing snow and responding to emergencies are essential functions of these jobs. It would not be an essential function of these jobs to require snowplow operators and emergency rescue workers to work 60 to 80 hours per week when there was no snow and no emergency.13
I agree with the majority that the question before us turns on whether Davis presented sufficient evidence that he was “ ‘qualified to perform the essential functions of the job in question.’ ” Majority at 532 (some emphasis omitted) (quoting Hill v. BCTI Income Fund-I, 144 Wn.2d 172, 193, 23 P.3d 440 (2001)); see also 6A Washington Pattern Jury Instructions: Civil 330.33, at 333 (4th ed. 2002) (WPI).14 And I agree with the majority that this court is not the *552appropriate forum for determining the essential functions of a Microsoft systems engineer. Majority at 536; accord Pulcino, 141 Wn.2d at 644. But judgment as a matter of law should “not be granted unless the court can say, as a matter of law, that there is neither evidence nor reasonable inference from the evidence sufficient to sustain the verdict.” Pritchett v. City of Seattle, 53 Wn.2d 521, 522, 335 P.2d 31 (1959). Such a motion “ ‘ “admits the truth of the opponent’s evidence and all inferences that can be reasonably drawn therefrom, and requires the evidence be interpreted most strongly against the moving party and in the light most favorable to the opponent.” ’ ” Hill, 144 Wn.2d at 187-88 (quoting Aluminum Co. of Am. v. Aetna Cas. & Sur. Co., 140 Wn.2d 517, 529, 998 P.2d 856 (2000) (quoting Goodman v. Goodman, 128 Wn.2d 366, 371, 907 P.2d 290 (1995))). Davis presented sufficient evidence to defeat such a motion. Applying the proper analytical framework, we are left with a question of fact, not law.15
Essential Functions
The Washington Law Against Discrimination prohibits discrimination against disabled employees. RCW 49-.60.030, .180. “The right to be free from discrimination because of... physical disability ... is recognized as and declared to be a civil right.” RCW 49.60.030(1). Violation of this right is answerable in tort. See, e.g., Pulcino, 141 Wn.2d 629.
*553Davis has the burden of establishing that he is capable of performing the essential functions of the job of systems engineer. Hill, 144 Wn.2d at 193. It is undisputed that Davis is a qualified systems engineer. The only question is whether an essential function of the job of a systems engineer is a 60 to 80 hour workweek. This is a question of first impression in Washington. Neither the legislature nor this court has yet established a standard for determining which job functions are essential functions. This is hardly surprising; whether a specific function is an essential function is a question of fact resisting easy codification.
“Whether a function is essential is evaluated on a case-by-case basis by examining a number of factors.” FP&L, 205 F.3d at 1305. In Washington, it is entrusted to the fact finder. Cf. WPI 330.33, at 333. Factors to assist the fact finder in this determination have been articulated. The federal Equal Employment Opportunities Commission has suggested a flexible standard, considering several factors.16 However, the various tests as articulated are not especially helpful, as they are generally couched toward determining if a task, duty, or discrete work condition is an essential function, not whether a structural requirement, like a regular workweek of 60 to 80 hours, is an essential function.
The Court of Appeals has been faced with related questions several times. In one case, the issue was whether the personnel appeals board properly found that the ability to restrain an inmate was an essential function of the job of a correctional officer. Noting that the ability to restrain an inmate was part of the official job description and was articulated in the collective bargaining agreement, and that in an emergency she might be called upon to perform the *554task, the court affirmed the personnel appeals board that it was an essential function. Dedman v. Pers. Appeals Bd., 98 Wn. App. 471, 479-80, 989 P.2d 1214 (1999). In another case, the Court of Appeals considered whether the ability to take notes of jailhouse interviews was an essential function of a public defender paralegal’s job. Noting that the paralegals in that position spent 75 percent to 80 percent of their time on this task, the court found that it was. MacSuga v. Spokane County, 97 Wn. App. 435, 438-39, 983 P.2d 1167 (1999). In a different case, the Court of Appeals effectively found that high stress was not an essential function of a financial services specialist job. See generally Sommer v. Dep’t of Soc. & Health Servs., 104 Wn. App. 160, 15 P.3d 664 (2001). Underlying these cases is a fact intensive determination of whether the ability to perform a particular function is essential to the job; a fact intensive determination best left to the finder of fact.
Instructions and Evidence
The jury was properly instructed on the law. Jury instruction 8 properly instructed the jury on Davis’s burden of proof.17 Further, jury instruction 10 properly defined “essential functions.”18
*555Davis began working for Microsoft in 1987 as one of its first systems engineers. In 1992, he became a systems engineer with the original equipment management (OEM) sales group, averaging about 45 to 50 hours work per week. As Windows 95 was about to be introduced, he began working longer hours, averaging 60 to 80 hours per week. However, in the nine years he had been with Microsoft, Davis had never been given an hourly requirement. The written job description for his position never contained an hourly work requirement or requirement to handle more than one account. The only official indication of required work hours was put forth after Davis requested an accommodation.
Moreover, when Davis’s supervisor completed a form entitled “Identifying Physical and Mental Demands of a Position,” after Davis made his request for an accommodation, the supervisor specifically stated that work hours vary and flexibility is the key. The form provided:
Work hours in this position are cyclical. As a sales position, work hours can expand or contract as situations require. Employees in this position are measured by results achieved and not by hours worked. This can mean more hours for employees working on more difficult objectives or with a difficult account.
*556Report of Proceedings (Oct. 18, 2000) at 27-28.
When Microsoft provided a reduced work schedule as a temporary accommodation, and Davis began servicing just the Toshiba account, his performance was good. Davis’s supervisor testified that there were no complaints about Davis’s performance during the time he was servicing the one account, which required “deep technical” expertise. Davis presented evidence that other Microsoft systems engineers now handle only one account. From this, the jury could have inferred that neither the 60 to 80 hour work week nor the handling of two accounts was an essential function of the job.
The majority concludes, as a matter of law, that an “intertwined” essential function of the job of a Microsoft systems engineer is “flexible availability, frequent travel, and extended hours.” Majority at 535.1 note, however, that Davis had no travel restriction. There is evidence he could be sufficiently available to his client had his work been restricted to servicing one account. Given that, the only remaining issue is whether a 60 to 80 hour workweek is an essential job function.19 There is substantial evidence to support a jury finding that Davis could perform every essential function as a systems engineer with the OEM sales group.
Conclusion
The respect accorded the jury is sunk deep into the history and traditions of our state and our nation. Wash. Const, art. I, § 22; U.S. Const, amend. VII. “The credibility of witnesses and the weight to be given to the evidence are matters which rest within the province of the jury; and, even if it were convinced that a wrong verdict had been *557rendered, this court would not substitute its judgment for that of the jury so long as there was evidence which, if believed, would support the verdict rendered.” Burke v. Pepsi-Cola Bottling Co. of Yakima, 64 Wn.2d 244, 246, 391 P.2d 194 (1964). The judicial urge to take questions of fact from the jury must be resisted.
We have upheld the legislature’s constitutionally vested power to enact a wage and hour statute; a holding that was upheld by the United States Supreme Court. See Parrish v. W. Coast Hotel Co., 185 Wash. 581, 55 P.2d 1083 (1936), aff’d, 300 U.S. 379, 57 S. Ct. 578, 81 L. Ed. 703 (1937). This case presents an allied question: whether a requirement to work extensive hours, as a matter of law, should be declared an essential function of a job that may not be modified to accommodate a disability. Given the disputed facts, this is a question best left to the jury. Therefore, I respectfully dissent and would affirm the trial court in its entirety.
Johnson and Ireland, JJ., concur with Chambers, J.
Reconsideration denied September 2, 2003.
I concur with the majority that the jury was properly instructed on Davis’s other legal theory. Given that I would affirm the trial court on all points, I do not consider the general verdict matter.
I do, however, agree with the majority that presence is an essential function of some jobs.
Illustrative is the current pattern jury instruction for the burden of proof on reasonable accommodation of a disability. It reads:
Discrimination in employment on the basis of disability is prohibited.
The plaintiff has the burden of proving:
(a) that [he] [she] has a disability;
(b) that the employer was aware of the disability;
(c) that [he] [she] was able to perform the essential functions of the job in question with reasonable accommodation; and
*552(d) that the employer failed to reasonably accommodate the plaintiff’s disability.
WPI 330.33, at 333.
I disagree with the majority that the “procedural reality” of this case mandates that it be taken from the jury. The procedural reality is that this is a motion for judgment as a matter of law. Thus, Microsoft can prevail only if “ ‘it can be said, as a matter of law, that no evidence or reasonable inferences existed to sustain a verdict for’ ” Davis. Gurno v. Town of LaConner, 65 Wn. App. 218, 222-23, 828 P.2d 49 (1992) (quoting Bender v. City of Seattle, 99 Wn.2d 582, 587, 664 P.2d 492 (1983)). This is a high standard that Microsoft has not met. Therefore, it was properly given to the jury and a review of the jury instructions is an appropriate judicial exercise before a verdict is reinstated.
Under the federal approach, a court must consider “(1) the employer’s judgment as to which functions are essential; (2) written job descriptions; (3) the amount of time spent on the job performing the function; (4) the consequences of not requiring the employee to perform the function; (5) the terms of a collective bargaining agreement; (6) the work experience of past employees in the job; and (7) the current work experience of employees in similar jobs.” Dedman v. Pers. Appeals Bd., 98 Wn. App. 471, 479, 989 P.2d 1214 (1999) (citing with approval 29 C.F.R. § 1630.2(n)(3)).
That jury instruction stated in relevant part:
On his claim of discrimination, Plaintiff Davis has the burden of proving each of the following elements by a preponderance of the evidence:
(A) that he had a disability;
(B) that Defendant Microsoft was aware of the disability; and
(C) either:
(l)(a) that, despite his disability, he was able to perform the essential functions of his job with reasonable accommodation; and (b) that Microsoft failed to reasonably accommodate him in that position.
Clerk’s Papers (CP) at 1683 (jury instruction 8).
That jury instruction stated:
The term “essential functions” means the fundamental job duties of a position. Essential functions are those that bear more than a marginal relationship to the job.
A job function may be considered essential for any of several reasons, including but not limited to the following:
*555(1) because the reason the position exists is to perform that function;
(2) because of the limited number of employees available among whom the performance of that job function can be distributed, and/or
(3) because the function may be highly specialized so that a person is hired for his or her expertise to perform that particular function.
The essential functions of a position may be determined by considering such factors as:
(1) the employer’s judgment as to what functions of the job are essential;
(2) written job descriptions;
(3) the amount of time spent on the job performing the functions;
(4) the consequences of not requiring the employee to perform the functions;
(5) the past work experience of other employees in the position; and/or
(6) the current work experience of employees in similar positions.
These factors are not intended to be the only factors that you may or should consider.
CP at 1686 (Jury Instruction 10). Compare Dedman, 98 Wn. App. at 479.
The Court of Appeals appeared to have found decisive the fact that on site demonstrations could present unforeseen complications that could require long hours. Davis v. Microsoft Corp., 109 Wn. App. 884, 892, 37 P.3d 333 (2002). However, whether occasional long hours would be required is not central to the issue before us; whether regular 60 to 80 hour workweeks, as a matter of law, are an essential function of the job.