On October 16, 2017, the Supreme Court rejected an employee’s petition for review of a decision in Stevens v Rite Aid Corporation.[1] Stevens sued under the Americans with Disabilities Act (“ADA”) for alleged discriminatory discharge claiming trypanophobia or “fear of needles” as a disability. Rite Aid discharged Stevens, a pharmacist of 32 years (with Rite Aid and its predecessors), after he refused to comply with Rite Aid’s requirement that pharmacists administer immunization injections to its customers. The Second Circuit held that administering injections was an essential function of the pharmacist position at the time of his termination, and therefore, concluded that Stevens was not a “qualified individual” with a disability.
At trial, Rite Aid personnel testified that the company made a business decision to start requiring pharmacists to perform immunizations. While courts are required to consider a variety of factors under Equal Employment Opportunity Commission’s (EEOC) regulations, many courts give substantial or “considerable” deference to an employer’s business judgment and written job descriptions. Following this deferential standard, the Second Circuit reversed entry of judgment in Stevens’ favor and ordered the district court to vacate the jury’s $2.6 million award and enter judgment for Rite Aid as a matter of law on his claim of disability discrimination.
The Second Circuit is in line with other circuits, including the Fifth, Eighth, and Tenth Circuits, which have concluded that considerable or substantial deference to an employer’s business judgment about essential functions and its written job descriptions is required. However, some circuit courts—like the Sixth Circuit—may give other factors greater or equal consideration, such as the time a person actually performs a function and the work experience of past or current incumbents in similar jobs.
The Supreme Court’s denial of certiorari underscores a growing belief that in the post- Americans with Disabilities Act Amendments Act (“ADAAA”) of 2008 world, an employee may be legally “disabled” pursuant to a very broad definition of disability. Such employees, however, must meet their burden in proving they are qualified individuals with disabilities. Indeed, the Second Circuit assumed “trypanophobia” was a disability under the ADAAA. The only issue was whether, given this disability, Stevens could perform the essential duties of his job.
In light of the focus of disability discrimination and failure to accommodate claims, employers should:
1) continue to regularly update job descriptions to describe the essential functions of a position;
2) ensure that job descriptions are written for jobs or classes of jobs;
3) require that employees acknowledge such job descriptions; and
4) contemporaneously document the business reasons for concluding that a function is essential, particularly where the function is a “new” one.
These practices will assist employers and employees by avoiding ambiguities about job requirements. In Stevens, for instance, the trial court admitted into evidence an updated job description—revised only a few months before Plaintiff’s termination. The revised policy was the result of Rite Aid’s business judgment that it wanted customers to have access to immunizations 24 hours a day. Ultimately, this proved dispositive in overturning the jury’s multi-million dollar award.
Thus, despite the EEOC’s guidance requiring a multi-factor analysis to determine whether a function is essential— such as evidence in Stevens that employees spent only a small amount of time giving vaccinations— such job descriptions are now more critical than ever.
[1] 851 F.3d 224 (2d Cir. 2017), cert. denied Oct. 16, 2017.
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