By Marti Cardi, VP-Product Compliance & Gail Cohen, Director, Compliance & Employment Law
An employer’s dream (nightmare, that is): Pfizer, Inc., gets the chance to convince a jury that driving is an essential function of its pharmaceutical sales representative position. Don’t bet on Pfizer. The facts of this case are sympathetic to the employee, Whitney Stephenson. And even though her argument is pushing the limits of what is a reasonable accommodation under the ADA, Pfizer did itself no favor by failing to include driving at all in its job description, let alone as an essential function of the position.
The Facts. Stephenson was a pharmaceutical sales representative for Pfizer (and its predecessor) for nearly thirty years. Her assigned territory was Winston-Salem, North Carolina. Stephenson’s position required her to visit doctors’ offices to give presentations encouraging those doctors to prescribe Pfizer medications for their patients. She was by all accounts an outstanding employee.
In late 2008, Stephenson developed a degenerative eye disorder that ultimately resulted in substantial vision loss such that, by November 2011, she could no longer safely operate a car. On October 27, 2011, Stephenson asked Pfizer for a driver to take her to sales meetings and for magnifying software for her computer and magnifying tools to enable her to read documents. She and her husband provided Pfizer with estimates they received from potential drivers and shuttle services. A month later, Pfizer granted her requests for magnifying software and tools, but rejected her request for a driver as “inherently unreasonable,” because driving was an essential function of her position. Stephenson continued to make this request.
In 2012, her supervisor told her that Pfizer was “concerned about setting a precedent in case a future non-performing employee were to ask for something similar” because “not everyone is a Whitney Stephenson.” Pfizer did not engage in an interactive process to determine whether there were any other possible reasonable accommodations to enable her to perform the essential functions of her position. Instead, the company directed her to pursue other positions within Pfizer that did not require travel. Stephenson declined to do so because she wanted to keep her (very lucrative) job. She filed a charge of discrimination with the EEOC.
Pfizer argued that driving was an essential function of Stephenson’s position because her key responsibility was to meet with doctors at their offices to sell Pfizer’s products. The job description, however, did not mention driving and instead focused, in great detail, on medical and product knowledge, skills in communications and developing relationships, and the like. The lower court ruled that driving was nonetheless an essential function of the position and entered summary judgment for Pfizer. But, the lower court also said that the “[t]here appears to be a genuine dispute as to whether Pfizer’s posted job descriptions for sales representative positions explicitly required a candidate to be able to drive.”
Now, the job of this blog is not to educate our readers in trial court procedure, but summary judgment is only appropriate if, upon the undisputed facts, one party is entitled to win. Based on its own statement, the trial court should not have granted summary judgment to Pfizer and reversal was appropriate.
Driving Miss. Crazy? Another issue that will await trial is whether providing a driver for Stephenson as she requested was an unreasonable accommodation. The appellate court recognized that “the ADA does not require an employer to reassign any of the essential function of a disabled employee, nor does it require an employer to hire additional employees to perform an essential function.” Rather, the employer’s obligation is limited to providing an accommodation that enables the disabled employee herself to perform all of the essential functions of her position. However, even the statute itself states that a reasonable accommodation may include “the provision of qualified readers or interpreters” – in essence, the hiring of another individual to assist the employee. It seems a fair argument could be made that Stephenson’s essential function is to get to the doctors’ offices – not how she gets there. And that paying for a driver or shuttle service is a reasonable accommodation to assist Stephenson with her travel to doctors’ offices.
Pings for employers. Employers can learn some valuable lessons from the Pfizer case — the first and foremost being to make sure you have a good job description that accurately describes the essential functions of the position.
In the Pfizer case, the plaintiff agreed that she had historically traveled her territory by driving a vehicle, but because the job description said traveling, not driving, Pfizer may be headed to a costly trial if it can’t settle her claim.
- Engage in the interactive process with your employee and accurately document that process. It is understandable that Pfizer’s reaction to employing a driver for its employee was to call it inherently unreasonable. But the ADA still required them to have a discussion with Ms. Stephenson to identify other, reasonable alternate accommodations. The ADA doesn’t require the employer to grant the employee’s specific, preferred accommodation, but it does require an effort to locate alternatives in an interactive discussion and that clearly did not occur.
- Remember that reassignment is the “accommodation of last resort.” If Pfizer had actually engaged in the interactive process and determined that there was no reasonable accommodation to enable Stephenson to perform her position, then PFIZER, not Stephenson, was responsible for reassigning her to a vacant position for which she was qualified.
Read the Stephenson v. Pfizer decision here.
Matrix Can Help! Matrix’s ADA Advantage leave management system and our dedicated ADA accommodation team helps employers maneuver through the accommodation process. We will initiate an ADA claim for your employee, conduct the medical intake if needed, manage the interactive process, assist in identifying reasonable accommodations, document the process, and more. Contact Matrix at 1-800-866-2301 to learn more about these services.