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LABOR & EMPLOYMENT LAW — 6/18/08

Wal-Mart to pay $250,000 over discharge of pharmacy technician with gunshot disability

Retail giant Wal-Mart will pay $250,000 and furnish significant injunctive relief to settle a disability discrimination lawsuit filed by the US Equal Employment Opportunity Commission (EEOC), according to a June 9, 2008 agency announcement. The EEOC claimed that Wal-Mart failed to accommodate and then fired a long-time pharmacy technician who suffered a disability resulting from a gunshot wound.

Background. Glenda D. Allen had been employed with the Arkansas-based company as a pharmacy technician since July 1993, most recently at Wal-Mart's store in Abingdon, Maryland, the EEOC said in its suit (DMD, No 1:06-cv-2514). As a result of a gunshot wound sustained during the course of a robbery at a different employer in 1994, Allen suffered permanent damage to her spinal cord and other medical issues, including an abnormal gait requiring the use of a cane as an assistive device.

Despite Allen's successful job performance throughout her employment, Wal-Mart declared her incapable of performing her position with or without a reasonable accommodation, denied her a reasonable accommodation and then unlawfully fired her because of her disability, the EEOC alleged. The lawsuit settled shortly after the court denied Wal-Mart's motion for summary judgment on March 10 and partially granted the EEOC's cross-motion for summary judgment finding that Wal-Mart had no undue hardship defense.

Settlement. Along with the monetary payment, the consent decree settling the suit requires Wal-Mart to: (1) observe the Americans With Disabilities Act (ADA); (2) have all salaried supervisors and managers of its Abingdon stores and in pharmacies in the district that includes Abingdon complete training on the ADA with annual refresher training for the next three years; (3) post a notice to employees on the ADA; and (4) submit a list of all employees at the Abingdon store and the pharmacies in the Abingdon district who have been denied reasonable accommodation and/or complained that they have been unlawfully denied reasonable accommodation or terminated because of their disabilities. The EEOC will monitor the company's compliance with the decree for the next three years.

This is the EEOC's second settlement this year with Wal-Mart concerning the ADA. In April 2008, the EEOC settled a lawsuit concerning Wal-Mart's failure to hire an individual with cerebral palsy in Richmond, Missouri for $300,000 and injunctive relief (EEOC v Wal-Mart Stores, Inc, WDMo, No 04-cv-0076, April 18, 2008).

"After beating all the odds — surviving my injury when not expected to survive, walking again when told that I would never walk again, and returning to work where I received excellent performance evaluations and consistent merit increases — I was devastated to have the rug pulled out from underneath me simply because Wal-Mart could 'no longer accommodate my handicap needs,'" said Allen. "I am hopeful that this settlement will make Wal-Mart take a closer look at its policies and practices with respect to the employment of individuals with disabilities so that what happened to me will not happen to someone else."

During fiscal year 2007, charges filed under the ADA increased 14 percent, the highest level since fiscal year 1998, the EEOC noted.

"When an employer is faced with an employee who has difficulty performing certain tasks because of his or her disability, it cannot sit back passively and then turn around and fire the employee because of its own failure to accommodate," said EEOC Regional Attorney Jacqueline McNair. "Federal law mandates that employers engage in a good-faith interactive dialogue with the qualified disabled employee to identify potential reasonable accommodations."

For more information on this and other topics, consult CCH Employment Practices Guide or CCH Labor Relations.

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