A Brief History of Wal-Mart and Disability Discrimination

Wal-Mart was recently busted for disability discrimination in hiring – again. In January the Equal Employment Opportunity Commission (EEOC) filed lawsuit against the retail giant for discriminating against Steven J. Bradley, when he applied for a job at Wal-Mart in Richmond, Missouri. Bradley has cerebral palsy and uses crutches or a wheelchair as mobility aids.


Wal-Mart refused to reach a settlement so the EEOC filed suit using the Americans with Disabilities Act (ADA) seeking lost wages and benefits, compensatory and punitive damages and a job for Bradley.


It was just back in 2001 that Wal-Mart and the EEOC reached a $6.8 million consent decree which resolved 13 lawsuits the commission had pending against the corporation in 11 states, including Missouri.


Ten years after passage of the ADA Wal-Mart’s illegal pre-employment questionnaire, “Matrix of Essential Job Functions,” violated employment discrimination provisions (ADA) by seeking disability-related information from applicants before making conditional offers of employment.


Title I of the ADA prohibits private employers, state and local governments, employment agencies and labor unions from discriminating against qualified individuals with disabilities in job application procedures, hiring, discharge, advancement, compensation, job training, and other terms and conditions of employment. Unfortunately that tag “qualified” applies to disability discrimination cases; it rightly does not to gender or age related civil rights law.


As part of the settlement, Wal-Mart agreed it would change its ADA policies and procedures, create an ADA coordinator position, provide training in ADA compliance and offer jobs to certain disabled applicants.


It wasn’t long before a judge slapped Wal-Mart with major sanctions for violating the Consent Decree in May of 2001 in the U.S. District Court for the District of Arizona. The court sanctioned the corporation $720,200 and ordered it to produce a TV advertisement stating that Wal-Mart had violated the ADA and referring people who believe they have been discriminated against. The court also ordered Wal-Mart to reinstate William Darnell, a hearing impaired employee, to a full-time receiver/unloader position and directed the corporation to accommodate Darnell’s disability in all activities of his job.


Wal-Mart was found in violation of the Decree because of its failure to create alternative training materials for use nationwide by hearing-impaired employees. The materials include a sign-language version of its computer-based learning modules used to train entry-level employees. In addition, EEOC contends, and Wal-Mart admitted, that it had failed to provide court ordered training on the ADA to its management employees.


“It is extremely unusual for EEOC to have to ask a court to hold an employer in contempt, ” said C. Emanuel Smith, acting regional attorney for EEOC’s Phoenix District Office, which has jurisdiction for Arizona.


Then in June 2001 the EEOC filed its 16th ADA suit against Wal-Mart for violating the ADA again. The EEOC accused the world’s largest retailer of failing to reasonably accommodate an employee with a disability at its Peoria, Arizona, store.


The lawsuit alleged that Wal-Mart discriminated against Alice Rehberg by refusing to provide a reasonable accommodation for her disability. Rehberg is severely limited in her ability to stand for extended periods of time. Wal-Mart refused Rehberg’s request for permission to occasionally sit down while performing her duties as a People Greeter, failed to engage in the interactive process required by the ADA, and constructively discharged Rehberg from her position.


The suit sought compensatory and punitive damages, reinstatement, injunctive relief, and a court order requiring Wal-Mart to conduct training that will prevent further violations of the ADA.


EEOC also has won several jury verdicts against Wal-Mart in other disability discrimination suits. In one case, a jury found that Wal-Mart intentionally refused to hire an applicant as a cashier because he used a wheelchair, and awarded him more than $3.5 million in damages (which was subsequently reduced by the court to comply with the ADA’s statutory caps, again caps do not apply to other protected minorities). In another case, a jury awarded $157,500 to an applicant due to Wal-Mart’s unlawful pre-employment inquiry and refusal to hire him because of his disability, an amputated arm. The verdict included a $100,000 punitive damage award, the largest ever levied against a company for asking an unlawful medical question under the ADA.


To wit private sector-government resolutions must be watch dogged to assure compliance.


Why, under such a hostile environment, would anyone want to work at Wal-Mart anyway? Aside from disability discrimination Wal-Mart is dragging wages and benefit levels back to 19th century standards — Wal-Mart workers are paid $2-$3 an hour less than union members who perform similar jobs. $6.00 per hour is about the average wage for unskilled workers these days.


Contrast that to five relatives of the late Sam Walton, founder of Wal-Mart Stores Inc., retained 5 of the top 10 spots of the wealthiest people in the world. Their net worth increased to $18.8 billion each from $17.5 billion in 2001, thanks to consumers buying the cheaper food, cheaper shirts, cheaper sheets, jeans and motor oil, in short cheaper everything and the corporation’s dubious labor practices.


The company has been found to ask employees to work longer than the standard 40-hour workweek without overtime pay (“Suits Say Wal-Mart Forces Workers to Toil Off the Clock,” The New York Times, June 25, 2002, Page A1). It has often harassed or fired nondisabled workers who have not been viewed as sufficiently cooperative with management.


Workers who did not believe that Wal-Mart had been adequately accommodating of their needs could fear losing their jobs if they discussed this fact with a reporter. William Darnell lost his job at Wal-Mart for demanding deaf-related accommodations from management.


Wal-Mart, America‘s largest retailer, employs 1.14 million workers at nearly 4,000 facilities worldwide. Only about one in three adults with significant disabilities is working. Many live on below poverty disability benefits. In a shrinking job market under the Bush administration, the job hunt has gotten fierce. In the view of some significantly disabled persons and indeed nondisabled workers, any job is a job worth having these days.


That is the way of it.


Marta Russell http://www.martarussell.com

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