Imagine the sweet taste of revenge that a jury verdict of over $2.6 million against a former employer would bring. Imagine how you many ways you would pamper yourself with all that money because your employer did you wrong and fired you because of your disability. Then, imagine an appellate court taking all of it away from you. Now you know how Christopher Stevens feels.
When Rite-Aid Pharmacy wanted to start offering flu shots and other immunizations to its customers, it notified all of its pharmacists that they would be required to undergo training to administer these shots. That presented a big problem to Christopher Stevens, a 34 year veteran pharmacist working for the company with excellent evaluations.
It turns out that Stevens has a genuine needle phobia. Just the sight of a needle makes him sweat, shake, turn pale and feel anxious and faint. The disorder has a name – trypanophobia. When he received notice in 2011, along with the other Rite Aid pharmacists, directing him to undergo training to obtain a certificate to administer immunizations, he promptly provided the company’s HR department with a note from his physician describing his trypanophobia and advising that Stevens could not undertake the training or administer immunization shots. Stevens himself made a request for a reasonable accommodation under the ADA as a result of his disorder, including the suggestion that customers could go to nearby Rite Aids for immunizations. The company did not relent on the training directive. The day after submitting his physician’s note, company representatives visited Stevens at his assigned store and told him that if he did not attend the training, he would be fired. He refused. Shortly thereafter, they made good on their promise, and discharged Stevens for failure to attend immunization training.
Stevens filed a charge of disability discrimination with the EEOC. The agency made a determination that trypanophobia is a disability under the ADA and brought suit against Rite Aid for violating the Act for failure to accommodate Steven’s disability and for discharging him for failure to attend the immunization training.
A New York federal court jury found in favor of Stevens with the clincher seemingly that when Stevens was hired by the company, it did not offer immunizations to customers and so administering injections was not part of the job description, but Rite Aid rewrote its pharmacist job description in 2011, and administering immunization shots was not included among the 16 enumerated essential functions of the job, despite the fact that the company had its immunization program in place by then.
In overturning the verdict, the appellate court found that in evaluating whether a particular job function is “essential,” for purposes of determining whether a person is a “qualified individual” under the ADA, the court considers the employer's judgment, written job descriptions, the amount of time spent on the job performing the function, the mention of the function in a collective bargaining agreement, the work experience of past employees in the position, and the work experience of current employees in similar positions. The court found that Rite-Aid had made a definite business decision to require pharmacists to administer immunizations as of 2011, as evidenced by, among other things, the mandatory training of all pharmacists in this function, despite it not being identified as such in a job description.
Along with its finding that administering shots was an essential function of Stevens’ job, the court found that Stevens failed to offer any reasonable accommodation which would allow him to perform that function. Neither sending customers to another store, nor providing him with desensitization therapy were reasonable. In particular, the court found that sending an employee for therapy or medical treatments is not a reasonable accommodation.
Despite a tough loss at the outset, Rite-Aid proved that it did things right. It was able to show that it had fully integrated administering immunizations as part of their pharmacists’ duties, including providing special mandatory training, thereby showing that it was now an essential function of the job. Employers should regularly review job descriptions to ensure that they reflect current duties of the job. New duties should be immediately identified as essential if they are such.
