This week on ReedGroup’s blog, we take a look at considerable news for employers managing requests related to the Americans with Disabilities Act (ADA): the whopping $125 million jury verdict on an ADA bias case brought against Walmart by the Equal Employment Opportunity Commission (EEOC). The EEOC, one of several federal agencies with oversight of ADA enforcement, accused Walmart of discriminating against a longtime employee with a disability. A federal jury in Wisconsin agreed and handed down a hefty judgement. We sat down to discuss the broader impact of absence management decisions in cases like this one. Ashlee Brennan is ReedGroup’s Senior Compliance Counsel; Rachel Biederman is ReedGroup’s Vice President of Marketing.
Rachel: So, Ashlee, obviously this is a big news story. And that is why managing absence correctly has implications beyond HR – you have to get it right, because everything is connected. Your brand is impacted by public perception of how you treat your employees, and how compliant you are with laws like the ADA.
Ashlee: Bingo. We are seeing more and more employers struggle to engage in the interactive process or provide basic leave to employees and in turn, businesses are feeling it when they are no longer considered a preferred retailer or employer of choice due to a compliance issue. Employees and consumers take these types of discrimination seriously, and mis-administration of even one claim could hinder a business’s viability.
Rachel: So, I’m reading in the press that the amount of the damages will probably be reduced to $300,000. Why?
Ashlee: Under the statute, which provides remedies to those suffering damages due to an ADA violation, a large employer like Walmart can be penalized (punitive damages) up to a maximum of $300,000. Don’t forget, however, that Walmart will still need to pay the employee’s lost wages, potential future pay, and litigation expenses. Not only that, it’s presumed the EEOC will be watching this Walmart location very closely over the next several years and at a minimum will require policy updates and training for management personnel.
Rachel: As a marketing leader, I think that the amount of money the company has to pay out doesn’t really capture the full impact, though. There’s a cost to your brand. So at this point, if I work in corporate reputation management for Walmart, I’m probably thinking that I need to start paying closer attention to the company’s absence management program.
Ashlee: I concur. Nearly half of the complaints filed with the EEOC each year relate to retaliation surrounding disability discrimination and have been trending that way for over a decade. The laws protecting those with disabilities are not going away anytime soon and in fact will continue to expand as science discoveries and social justice initiatives persist. It would seem like an easy decision to ‘level-up’ the absence management program and policies. Creating a robust internal leave management system or outsourcing it to a reputable third-party administrator is one way to ensure employers meet their legal obligations .ReedGroup assists in keeping employers compliant through its plethora of software and services for this exact reason.
Rachel: What’s the compliance perspective on this case? What did the court decide was handled incorrectly?
Ashlee: I feel like a broken record, and I’m sure the EEOC does too. Employers MUST put each employee through the interactive process and work with that employee to accommodate their needs. If the employer ultimately decides there is an undue hardship and is unable to accommodate the request, they can offer an alternative to the employee; however, they should never react by terminating or retaliating. They could have discussed a schedule with the employee that would both meet the needs of the company and accommodate the employee’s disability. I’m sure there could have been a solution; in fact, it appears this employee was a long-term employee and Walmart had accommodated her previously. Therefore, the argument that they were unable to do so on a go-forward basis probably seemed implausible. Bottom line: train all of your managers!
Rachel: As you mentioned, part of the reason that large employers choose to outsource absence management to a third-party administrator is that every branch and store needs to be compliant with laws like ADA, and that becomes increasingly hard to do as you get more and more HR teams in the field. So what are some ways a large employer can have an absence management program that remains compliant with the ADA?
Ashlee: Employers can leave their ADA administration to a third party for expertise or can administer it in-house. If administering in-house, I encourage employers to have open-ended accommodation policies, which allow for the required interactive dialogue to occur. Maximum leave policies, such as ‘everyone is given 30 days of personal leave and then the position will be posted’ will have the EEOC knocking on your door faster than you can blink. These policies are inflexible and lack the required interaction and discovery that the ADA intends. Invest in your human resources and benefits teams. Ensure you are training ADA administrators on the law and arming them with resources such as the Job Accommodation Network (JAN) and other occupational health tools. And lastly, do not fire an employee because they have asked for a disability-related accommodation…particularly if that disability is an open and obvious one as it was here. It’s that simple.
After years of ADA lawsuits alleging discrimination, employers should be prepared to defend their accommodation policies, considering EEOC investigations. Be sure to get ahead of this emerging issue by creating a robust ADA program internally or outsourcing to a reputable third-party administrator.
If you’re looking for assistance managing claims or to ensure compliance across your organization, ReedGroup has solutions for you. Check out our offerings here.
Information provided on this blog is intended for general educational use. It is not intended to provide legal advice. ReedGroup does not provide legal services. Consult an attorney for legal advice on this or any other topic.