A partially blind Pfizer sales rep who can’t drive her car to visit doctors will have her day in court.
In a closely watched case, a federal appeals court last week ruled that Pfizer may have violated the Americans with Disabilities Act by refusing to provide Whitney Stephenson with a driver and car in 2011 after she lost about 60 percent of her vision in both eyes. The sales rep had argued that the company never expressly required her to drive a car in order to visit doctors and promote Pfizer medicines.
For its part, the drug maker maintained that driving to doctors was an essential function and Stephenson must perform this task personally, according to court records. A lower court had agreed with the drug maker and tossed her case. But the US Court of Appeals for the Fourth Circuit disagreed and ruled that a jury should decide whether Pfizer violated federal law. A new court date has not yet been set.
“There is a genuine dispute of material fact as to whether the essential function at issue is driving or travelling” to visit physicians, the appeals court wrote.
A Pfizer spokesman sent us a note saying that “we are reviewing the decision and considering our options.”
A key issue that will be fought over is her job description.
Notably, the appeals court pointed out that Stephenson’s job description did not mention anything about driving a car or even possessing a driver’s license. Stephenson, who covered territory in North Carolina, began work as a sales rep in 1984 for Warner-Lambert, which Pfizer later acquired, and was considered to be a star among the company’s many reps.
So Pfizer agreed to provide Stephenson, who worked in Winston-Salem, N.C., and is currently on disability, with computer software and magnifying glasses. But the drug maker maintained that hiring a car and driver would be “inherently unreasonable,” court documents stated. The company denied that cost was a factor in its refusal, but was concerned about the risk and liability involved, as well as the possibility of losing drug samples.
And the drug maker apparently had other considerations. Pfizer’s North Carolina regional business director told Stephenson in early 2012 that the company was concerned about “setting precedent in case a future non-performing employee were to ask for something similar,” according to court documents. “Not everyone is a Whitney Stephenson.”
At that point, the drug maker directed her to other jobs within the company that did not require travel, but she declined. In response, Stephenson filed a notice with the US Equal Employment Opportunity Commission, claiming disability discrimination, and later that year was told she could file a lawsuit.
In court documents, Pfizer argued that reversing the lower court ruling “would have a sweeping precedential impact on all jobs involving driving, including all outside sales representative positions.” The drug maker also maintained the law supports its position that its judgment — that driving is an essential part of a sales rep’s job — should not be second-guessed.
However, in a court brief supporting Stephenson, the National Disability Rights Network argued that, if the lower court ruling were allowed to stand, it “would set a harmful precedent” regarding the “central role that reasonable accommodations play in making work accessible to people with disabilities, and would undermine a central purpose of the ADA.”
Although similar cases have surfaced before, this is “not an everyday case,” said Robert Dinerstein, who heads the Disability Rights Law Clinic at the Washington College of Law at American University. And he noted that the appeals court ruling is significant, if only because most aggrieved employees do not generally succeed in making the kind of argument that Stephenson made.
He added that Pfizer’s argument as “seems a little weak. … What is critical or essential for her to do her job is very fact-intensive. You have to look to see what the job description says and hers did not require the ability to drive. If it was really so critical, wouldn’t you expect it to be in the job description?”