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The Importance of Carefully-Worded Job Descriptions - March 2016

March 04, 2016

by Jeffrey D. Wilson

While employers are not legally required to draft job descriptions for most positions, many do anyway in an effort to define job duties. This week the Fourth Circuit Court of Appeals issued an opinion that, while not groundbreaking, serves as a reminder of how important it is to properly word position descriptions, including those used to advertise job openings.

In Stephenson v. Pfizer, Inc., No. 14-2079 (4th Cir. Mar. 2, 2016), the Court took up a matter where the trial court had granted summary judgment in favor of the defendant, pharmaceutical company Pfizer, and dismissed the case. The plaintiff, Whitney Stephenson, had worked for Pfizer for nearly 30 years as one of its most productive pharmaceutical sales representatives. Ms. Stephenson spent the majority of her workdays in meetings with doctors at their offices, which meant that she was constantly traveling from one office to the next. Unfortunately, Ms. Stephenson developed an eye disorder in 2008 that caused her to lose sixty percent of the vision in her left eye. She continued her normal work routine for another three years, but then her condition caused similar damage to her right eye. No longer able to drive, Ms. Stephenson took disability leave and requested that Pfizer accommodate her vision problem by providing her with, among other things, a driver to take her to sales meetings. Pfizer refused her request for a driver on the grounds that it was “inherently unreasonable” and would result in “significant increased risk and liability.” The company offered Ms. Stephenson other positions that did not involve travel, but she declined and filed a charge of disability discrimination under the Americans with Disabilities Act (“ADA”) with the EEOC which led to the lawsuit.

The trial court determined that driving was an essential part of Ms. Stephenson’s job despite the fact that Pfizer’s job postings for sales representatives did not explicitly require that the candidate be able to drive. The court noted that the ADA does not require employers to reassign, reallocate or adjust such essential functions, so Ms. Stephenson’s driver request was unreasonable.

Ms. Stephenson appealed the decision to the Fourth Circuit, which took issue with the trial court’s analysis. The Court observed that in order to pursue a failure-to-accommodate claim, Ms. Stephenson had to prove, among other things, that she could perform the essential functions of her job with a reasonable accommodation and that Pfizer refused to make such an accommodation. The Court stated that there were two factors that indicate whether a particular function is essential to a position. First, “the employer’s judgment of the essential functions must be considered.” Second, if a written job description was prepared ahead of advertising or interviewing candidates, that description “shall be considered evidence of the essential functions of the job.”

Pfizer argued that the ability to drive a car was an essential function of Ms. Stephenson’s sales position. Ms. Stephenson countered that traveling – not driving – was the function at issue. Finding that the record did not provide enough facts to answer that question, the Fourth Circuit vacated the trial court’s award of summary judgment and sent the matter back for a jury to resolve.

While there is no way to know for sure, Fourth Circuit’s order appears to indicate that Pfizer could have avoided trial if it had specifically stated in its job postings for sales representatives that all candidates must be able to drive. Any employer that drafts a job description, either before or after the position has been filled, should take care to reference each and every essential function needed to perform the job. A little thought today could result is a lot less legal costs in the future.

Jeffrey D. Wilson is an attorney at Pender & Coward who focuses his practice in the areas of employment counseling and business litigation. He can be reached at (757) 502-7341 or jwilson@pendercoward.com.