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Supreme Court Rejects Disabled Employee’s Bid to Revive His $2.6 Million ADA Jury Verdict: Why You Should Still Regularly Update Job Descriptions and Supporting Documents

January 3, 2018

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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

Following the Weinstein Allegations, Improving Workplace Culture

The wave of sexual harassment allegations against high profile media moguls such as Harvey Weinstein, Bill O’Reilly, and Mark Halperin has put sexual harassment issues in the public spotlight.  All employers, even those not in the “biz,” should take this opportunity to review their sexual harassment training and policies and consider ways to improve their workplace culture.

In a recent exclusive interview with Law360, the Equal Employment Opportunity Commission (“EEOC”) acting Chair Victoria Lipnic reiterated the EEOC’s focus on sexual harassment and retaliation across a wide range of industries. See Law360, “We See This Everywhere, EEOC Chair Says of Weinstein,” Braden Campbell (Oct. 24, 2017), available at https://www.law360.com/employment/articles/977719/-we-see-this-everywhere-eeoc-chair-says-of-weinstein?nl_pk=2905a360-50ef-439a-8c8c-a294a6bf3896&utm_source=newsletter&utm_medium=email&utm_campaign=employment. Lipnic’s interview highlights the importance for employers to review their policies and take affirmative steps to create a positive work environment.

According to Lipnic, “We see this everywhere. This happens to women in workplaces all over the place.  You look at the companies that, just last year where the EEOC brought suits. It’s food processing plants, a correctional facility, a car dealership, restaurants, agriculture. It’s across industries.”  She discussed an EEOC task force, which concluded in a June 2016 report that approximately 75% of women who experience sexual harassment do not complain internally.  Discussing deterrents to reporting, she stated, “Most people, particularly in terms of sex harassment, are not going to come to the EEOC and file a charge.  Only about 30 percent of women who experience harassment ever complain internally.”

In the interview, Lipnic discussed steps employers can take to

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