Drug Firm Violated Disabled Worker’s Rights, Panel Says

The manufacturer of two of the most widely prescribed antidepressant drugs engaged in disability-based discrimination against an employee diagnosed with depression and panic disorder, according to a ruling by the Maine Human Rights Commission.

The commission ruled on May 14 that GlaxoSmithKline, maker of Paxil and Wellbutrin, discriminated against sales representative Arlene P. Emery by refusing to make adequate accommodations for her psychiatric disorders.

From 1997, when she began working for what was then SmithKline Beecham Pharmaceuticals, until 1999 Emery had taken one leave of absence as a result of her psychiatric condition and another for an unrelated medical condition.

In February 1999, at her psychiatrist’s urging, Emery asked the drug company to reduce her workload in the form of a shortened work week and lowered sales quotas, changes that she maintained would enable her to continue in her job while accommodating her depression and panic disorder.

According to the report filed with the commission by her attorney, David Webbert, the company agreed to allow her to work just three days a week, but would not consent to any reduction in her sales quota. (Webbert was co-counsel for the plaintiff in the precedent-setting discrimination case against a Maine dentist that led to the U.S. Supreme Court’s ruling that HIV infection was a disability under the terms of the Americans With Disabilities Act.)

Soon after having her request turned down by her employer, which was then SmithKline Beecham Pharmaceuticals, Emery said she suffered a severe panic attack and, as a result, did not return to work.

She began to receive short-term disability payments, but the company eventually fired her. According to its response to the human rights commission, the company insisted that Emery, a single mother with two children, was not disabled as evidenced by activities in which she was engaging outside of work. One such activity cited was studying for a master’s degree to become a psychiatric clinical specialist.

GlaxoSmithKline’s attorney, Matthew Porter, told the commission that the company would not agree to Emery’s terms, particularly her request to have flexible work hours, because the sales representatives work as a team, and as a result it “is essential that everybody knows who will be at work on a given day.”

Webbert rejected the company’s argument and said that its failure to accommodate Emery’s disability was especially troubling since it “sells to and is expected to heal and help people with psychiatric disabilities.”

The human rights commission labeled the company’s actions “punitive” and “arbitrary” and said that its actions “had the predictable result of aggravating her mental illness, making it impossible for her to continue working any longer.”

During the four-and-a-half months Emery was receiving short-term disability benefits and prior to her firing, SmithKline sent her for an independent evaluation with a psychiatrist identified only as Dr. V. According to the commission’s report, he concluded that Emery “has an adjustment disorder . . .with depressed mood versus major depressive disorder and [also has] panic disorder with mild agoraphobia (driving).” The examiner concluded, “He did not believe she was able to perform her work as a sales representative. . .nor was she able to return to work immediately [in another position]. He did believe her prognosis for full recovery was favorable,” according to the investigator’s report to the commission.

The investigator the commission assigned to assess the case concluded in her report, “The company’s discriminatory treatment of Ms. Emery had the predictable result of aggravating her mental illness, making it impossible for her to continue working any longer.”

After hearing from the two sides, the commission unanimously found that “Emery was denied reasonable accommodation and was terminated because of her disability,” which constitutes a violation of the Maine Human Rights Act.

Despite the commission’s finding, GlaxoSmithKline “disagrees with the allegations in this case,” company spokesperson Nancy Pekarek told Psychiatric News. “The company granted Ms. Emery the accommodations she requested and believes it operated in good faith and in accordance with the law,” she said.

The next step in the process involves representatives for Emery and the company engaging in mediation to try to arrive at a settlement of the dispute acceptable to both parties. ▪