A Perspective: EEOC v. Wal-Mart Stores East, LP

Wal-Mart is paying $70,000 to settle a case in which it did accommodate a new employee by allowing the employee to use an electric cart normally provided to customers, then seven months later took the electric cart away. This led to the employee being placed on involuntary, unpaid leave.

This case raises an important question not addressed in the EEOC’s press release: Why did this happen after seven months of accommodating the employee? 

Two possibilities come to my mind, and they may not have anything to do with this particular case.

1. Reasonable Accommodation Policy and Procedure– Was the store’s policy well documented and regularly reviewed?
   
   Was there a procedure for:
   • Providing and documenting an accommodation 
   • Periodically reviewing the effectiveness of the accommodation?
   • Are these reviews also documented? 

In this case, the electric cart should have made it possible for the employee to get from point A to point B at least as quickly as any employee could safely walk. It would be important to keep the focus on the ability to get around the store as safely and efficiently as any other employee in this job, in order to be able to perform the essential functions of the job.

If the accommodation was not effective in accomplishing that, the reasons why should have been documented, as well as considerations for other accommodations. If none existed, the interactive process should have been documented to substantiate the need to offer an alternate position or even to let the employee go.

2. Job Performance Issue: If the employee was not performing satisfactorily in spite of having an effective accommodation, this would need to be dealt with as a job performance issue. Establishing and documenting that in spite of an effective reasonable accommodation the employee wasn’t meeting the position’s essential functions would be important to make it clear that this employee wasn’t removed from the position because of a disability.

A consideration from this perspective, therefore, is to avoid co-mingling performance issues with disability/reasonable accommodation issues. Ensure that policies and procedures separate the two, and document all steps and decisions along the way so that decision making is clear.

“Revoking a reasonable accommodation without providing an alternative violates the ADA.”  EEOC Charlotte District Regional Attorney Melinda C. Dugas