In spite of the large number of disability discrimination lawsuits it has faced, Wal-Mart claims to be recognized as a top employer for disabled people. If we want to give Wal-Mart the benefit of the doubt, perhaps Wal-Mart, percentage-wise, as the nation’s largest private employer (click here for last week’s overview) does actually have a good record for employing and accommodating disabled workers. The lawsuits, relative to the number of employees and even disabled employees, may in fact be a small ratio. Either way, Wal-Mart has faced enough disability discrimination lawsuits for the rest of us to be able to learn from them. So, let’s see what we can learn from Wal-Mart about hiring and employment practices vis-a-vis disabled workers after the jump…
Since we can’t possibly list every disability discrimination case against Wal-Mart, we’ll use a sampling of eight cases, where we briefly list some cases and the key facts:
- EEOC v. Wal-Mart Case No. 2:11-CV-00834 (Dist. New Mexico, 2012) settled for $50,000 and agreed to conduct annual live management training on the ADA at its Carlsbad, New Mexico store. Wal-Mart fired a part-time store clerk, a twenty-two year employee with cerebral palsy, rather than allow her, after return from a medical leave, a temporary accommodation of periodic breaks off her feet. The manager instead required a medical release with no restrictions.
- EEOC v. Wal-Mart Stores East, LP, Civil Action No. 1:14-cv-00862-JKB . Wal-Mart’s Cockeysville, Maryland store refused an applicant with end-stage renal disease an alternative means for providing a urine sample for a drug test, and then denied the applicant employment.
- Brown v. Wal-Mart Stores, Inc., CASE NO. 5:09-CV-03339 EJD. A federal judge certified a class of over 20,000 Wal-Mart workers alleging violated the ADA and California Industrial Welfare Wage Order 7 violations when Wal-Mart refused to provide suitable seating for cashiers requesting it. Fines for violation of the California statute are $100 per day per person first violations and $200 per person fines for subsequent violations. Wal-Mart appealed the class-certification to the Ninth Circuit Court of Appeals and proceedings have been stayed (i. e. “frozen”) pending the appeal.
- EEOC v. Wal-Mart Stores, Inc., Civil Action No. 14-cv-50145. Wal-Mart’s Rockford, Illinois store rescinded an accommodation it had previously provided an intellectually disabled employee of 18 years, of giving him written assignments. Wal-Mart then disciplined and ultimately fired him for unsatisfactory performance. A similar case, involving a janitor at Wal-Mart’s Eugene, Oregon store settled for $50,000 late last year.
- The U.S. Supreme Court agreed to hear Huber v. Wal-Mart Case No. 07-480, to decide whether an employer must provide a disabled employee an equivalent job, giving preference to other qualified candidates as an accommodation under the ADA once s/he is no longer able to perform his or her own job. The parties entered into a confidential settlement before the Court heard the case. (The circuit courts of appeals remain split on this issue.)
- EEOC v. Wal-Mart No. 2:10-cv-00222, settled for $275,000 in December 2012. A forklift operator at one of Wal-Mart’s distribution centers in eastern Tennessee after cancer surgery could not do manual lifting. Although in practice his job did not require manual lifting, and he had successfully performed his essential job functions for three years after the surgery, Wal-Mart placed him on unpaid leave. Two months after the employee filed an EEOC charge, Wal-Mart fired him, giving rise to both a disability discrimination and retaliation claim. Wal-Mart also agreed to train its store managers on disability accommodation and prevention of retaliation.
- Brady v. Wal-Mart Stores, Inc., No. 06-5486-cv (2d Cir. July 2, 2008). The second circuit affirmed a multimillion dollar verdict for an employee in the pharmacy department of Wal-Mart’s Centerreach, N.Y. store Mr. Brady had cerebral palsy. Although Mr. Brady did not request accommodations, obvious speech, visual and walking impediments put Wal-Mart on notice of disabilities for which it should have provided reasonable accommodations. Also, in the hiring stage, Wal-Mart asked questions about his disability, his medications and his medical history and was subjected to a hostile work environment after he was hired, again showing that Wal-Mart knew he was disabled. He quit shortly thereafter. Wal-Mart’s actions also violated a 2001 nationwide consent order, which required providing sensitivity training to employees and excluding questions about an applicant’s ability to perform jobs without reasonable accommodations.
Wal-Mart has attempted to explain away a number of the lawsuits brought against it as either patently false or isolated incidents. Remember the above cases are a miniscule sampling of disability discrimination lawsuits against Wal-Mart within (mostly) the last three years. Assuming then, that Wal-Mart does not deliberately discriminate against the disabled, the fact that these lawsuits are not confined to any one store, state or region suggests that Wal-Mart may not be doing all it can to prevent discrimination against and accommodate its disabled applicants and employees.
Now, I mentioned last week the suggestion that Wal-Mart may not care about avoiding employment litigation. Wal-Mart, arguably can afford to roll the dice. Not to rub it in, but most you Emplawyerologist followers who are employers are not Wal-Mart, and, I assume, you would rather not have to defend a disability discrimination lawsuit. Here are some steps you can take to avoid getting in the same hot water as Wal-Mart has:
- Train all your managers and employees in all your locations on the ADA, ADAAA and applicable state laws. The training and all policies and procedures, should be uniform, except with regard to specific state and local requirements. If possible provide sensitivity training as well, so you don’t get hit with hostile work environment allegations.
- Take all requests for accommodations seriously and engage in the interactive process–even if the employee doesn’t use the magic words “disability”, “ADA”, “reasonable accommodation” or any other buzz phrase you might otherwise expect.
- If it appears obvious to you that an applicant or employee is disabled, make every reasonable attempt to provide reasonable accommodations, even if the applicant or employee doesn’t request one.
- Document every request, your response and your reasons.
- Communicate with your in-house or competent, local employment counsel about any questions that arise.
Join The Emplawyerologist next week when we look at Wal-Mart’s contests with workers’ compensation.
Disclaimer: This post’s contents are for informational purposes only, are not legal advice and do not create an attorney-client relationship. Always consult with competent local employment counsel on any issues discussed here.
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