In August 2007, Wal-Mart Watch began an exhaustive study of all federal discrimination lawsuits, open or closed, filed against Wal-Mart Stores, Inc., and its subsidiaries ("Wal-Mart") from January 2004 until the present. It is already widely known that Wal-Mart is the defendant in the largest workplace gender discrimination class action lawsuit in the history of the United States, Dukes v. Wal-Mart. Wal-Mart Watch's research reveals that Wal-Mart's discriminatory practices extend far be yond simply gender or race, and that the methods of discrimination overall are quite extraordinary. To date, we have found more than 700 discrimination cases filed against Wal-Mart since 2004.
This paper focuses on a subset of that list – cases of discrimination against individuals with disabilities – and highlights two important patterns:
- Wal-Mart's refusal to provide Americans with Disabilities Act ("ADA")-mandated reasonable accommodations for employees and applicants with disabilities; and
- Requiring employees with disabilities who request a reasonable accommodation to take a leave of absence.
Wal-Mart's history with the Equal Employment Opportunity Commission ("EEOC" or the "Commission"), the enforcement arm of the ADA, is littered with lawsuits, settlements, and broken promises to eliminate barriers for applicants and employees with disabilities. EEOC records show that, by June 2001, the Commission had filed sixteen lawsuits against Wal-Mart for violating Title I of the ADA, the most filed against any corporation since the ADA went into effect in mid-1992. Three additional cases were filed within the next four years. Another new case was filed in September 2008.
The largest settlement came in 2001 -- $6.8 million in total to be paid by Wal-Mart -- when a consent decree was reached resolving thirteen EEOC lawsuits filed between November 1998 and September 2001. This particular settlement required Wal-Mart to hire an ADA Coordinator, who has expertise in the ADA and personnel matters, to oversee Wal-Mart's compliance with and implementation of the consent decree.
Since then, Wal-Mart's ADA office has been busy. Since January of 2004, at least 108 cases have been filed under the ADA in federal district courts across the country. Twenty have already been filed in 2008. Many of these were filed by people who requested and were either denied reasonable accommodations and/or fired. Some were also "encouraged" to agree to take a leave of absence, from which they would never return to work. This paper will refer to the latter tactic as the "leave of absence trick."
This "leave of absence trick" is not restricted to employees with disabilities, as several cases involving use of the strategy with non-ADA medical issues also exist. Slight variations occur depending on the particulars of the case, usually related to the individual's awareness of their rights under the ADA and other laws. However, all cases cited in this report are filed under the ADA, and the general pattern of each is eerily similar.
This "leave of absence trick" often works as follows:
- An employee requests an ADA-mandated "reasonable accommodation" in order to deal with a permanent or temporary disability.
- Wal-Mart orders the requesting employee to take a leave of absence while the company "acts" on the reasonable accommodation request.
- If the employee agrees to take a leave, one of two things generally happens:
- The accommodation is granted, but there are no positions available for the employee returning from leave; or
- The accommodation is denied with management claiming the employee must be "100% capable of working for Wal-Mart," at which point the employee is terminated for failing to return from leave.
Wal-Mart Watch believes that for each case found in which Wal-Mart has utilized this tactic, there are many others that were never filed because of the overwhelming financial obstacles involved for an average employee to litigate against Wal-Mart. Furthermore, we believe that this tactic is designed to circumvent the ADA, allowing Wal-Mart to essentially dispose of unwanted employees who request accommodations.
All of this information begs a question: Why would Wal-Mart use this tactic? In most of the cases, the employees subject to the leave of absence trick had worked at Wal-Mart for some time and had excellent work records.
One possible explanation is the correlation between the timing of these cases and the infamous Chambers Memo, an internal document written in early 2005 by Wal-Mart's then head of Human Resources, Susan Chambers, which recommended that Wal-Mart needed to "Redesign... job design, to attract a healthier, more productive workforce."
Another theory is that this tactic is just another in a long list of money-saving actions taken by Wal-Mart, such as appealing property tax assessments, meant in the end to save the company even the smallest amount. These actions appear to be driven by the internal belief that Wal-Mart shouldn't be required to do something - in this case, employ people with disabilities.
Regardless of the reasons why, Wal-Mart frequently denies reasonable accommodations and often "tricks" employees with disabilities and other health issues into taking forced leaves of absence, ultimately resulting in termination. However, the termination comes only after dragging these employees through a long, painful process. At the end of that process, often the only remaining option for employees is to sue the company to get their jobs back, which as stated above is not a viable option for the majority of hourly Wal-Mart employees.
Of course, Wal-Mart executives would never admit that the company employs these tactics. How ever, Wal-Mart Watch hopes the information presented in this report will empower employees, plaintiffs' attorneys and the media to ask questions and force Wal-Mart executives to justify their actions in the egregious examples in this paper and the hundreds of other cases not filed.