DRUG STORE CHAIN TO PAY $180,000 TO SETTLE EEOC DISABILITY SUIT

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Drugstore giant Walgreens has agreed to pay $180,000 to a longtime employee with diabetes and to implement revised policies and training to settle a federal disability discrimination lawsuit filed by the U.S. Equal Employment Opportunity Commission (EEOC).

The EEOC’s lawsuit charged that former cashier Josefina Hernandez, who has Type II Diabetes, was fired by a South San Francisco Walgreens because of her disability after she ate a $1.39 bag of chips during a hypoglycemic attack in order to stabilize her blood sugar level.  Hernandez had worked for Walgreen for almost 18 years with no disciplinary record, and Walgreens knew of her diabetes.  Yet the company security officer testified that he did not understand nor did he seek clarification when Hernandez wrote, “My sugar low.  Not have time,” in reply to his request for an explanation of why she took the chips before paying.  Hernandez did attempt to pay for the chips after she recovered from her attack.

Terminating a qualified employee because of a disability violates the Americans with Disabilities Act (ADA).  The law also requires an employer to provide reasonable accommodation to an employee or job applicant with a disability, unless doing so would impose an undue hardship for the employer.  After an investigation by the EEOC and after attempting to resolve the case through pre-litigation conciliation efforts, the EEOC filed a lawsuit.

On April 14, U.S. District Judge William Orrick noted that “Walgreen has failed to allege any misconduct that is unrelated to her disability,” and denied Walgreens’ motion for summary judgment.  At this hearing, Walgreens’ own legal counsel acknowledged Hernandez as a long-term valued employee with a very good track record, and described her termination as a “harsh result” perceived by the EEOC as unfair.

Not only was this harsh, but the EEOC said it was illegal.  According to the consent decree settling the suit ordered by Judge Orrick, Walgreens agreed to pay Hernandez $180,000 and to post its revised policy regarding accommodation of disabled employees on its employee intranet site.  The company will also provide anti-discrimination training, make periodic reports to the EEOC, and post a notice regarding the decree for three years.  EEOC Supervisory Trial Attorney Jonathan Peck and Trial Attorneys Cindy O’Hara and Peter Laura litigated the case for the federal agency.

This case should serve as a reminder to employers that they should consider disabilities when making decisions such as terminations.  What may appear to be a case of theft could actually be a reasonable accommodation.  Employers need to remember to train managers and supervisors about the ADA and reasonable accommodations and provide periodic refreshers.

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