Kmart, America’s forgotten retailer, had an unflattering blue light shining on it this week, when it was announced that the U.S. Equal Employment Opportunity Commission (EEOC) had named the discount retailer in a lawsuit filed June 23rd under the Americans With Disabilities Act (ADA). The lawsuit was filed on behalf of a former worker who used a cane to walk. According to the legal complaint, which was filed in the U.S. District Court for the Eastern District of Virginia (Equal Employment Opportunity Commission v. Kmart Corporation), in September of 2004 Alonzo McGlone was hired as a greeter at a Kmart Super Center in Norfolk, Virginia. McGlone uses a cane, and the EEOC alleges that the Kmart employee was successfully performing his duties as a greeter. The lawsuit contends that Kmart fired him for using his cane while on the job. EEOC lawsuits are only filed after the federal agency tries for months, or years, to reach an out of court settlement. In the filing, the EEOC seeks to have Kmart rehire McGlone in an equivalent job, and to give him back pay, compensatory damages, and punitive damages. As is typical in these cases, the EEOC also wants to require Kmart to put in place policies, practices, and training programs to provide equal employment opportunities for individuals with disabilities. “Mr. McGlone lost his job because he needed to use an assistive device to walk,” said the director of EEOC’s Norfolk Local Office. “It is unfortunate that many employers still deny people who are ready and able the opportunity to work simply because of a disability. The EEOC will continue to fight for the rights of people victimized by such prejudices.” According to the Associated Press, in 2008, the EEOC fielded almost 20,000 discrimination claims, the highest number of claims in 14 years. A spokesman for the EEOC told the AP that the Kmart suit was a reminder that “although we have made great strides in educating employers and the public about disability discrimination, some employers still judge applicants and employees based on a disability rather than on their proven ability to do a job.”
Kmart’s discrimination lawsuits can’t hold a candle to its much larger competitor, Wal-Mart. Last February, the giant retailer was forced to pay $250,000 in a disability claim by the EEOC resulting from the firing of a pharmacy technician who had a gunshot disability. The company also paid $300,000 in April of 2008 to a man with cerebral palsy that Wal-Mart refused to hire. In 2001, two deaf men successfully filed a discrimination-in-hiring complaint against Wal-Mart, requiring the company to run TV ads about workplace discrimination. In the spring of 2003, the EEOC in Arizona sought to find Wal-Mart in contempt of court regarding this case of the deaf applicants, charging that the corporation failed to comply with several provisions of a court-approved Consent Decree resolving an ADA lawsuit filed by the agency’s Phoenix District Office in 1998. The suit charged Wal-Mart with refusing to hire two Arizonans because of their disability, deafness. The contempt motion stated, among other things, that Wal-Mart was 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, the EEOC said, Wal-Mart failed to provide court ordered training on the ADA to its management employees. The training was designed to effectuate the ADA’s protections against discrimination for hearing impaired individuals in central and southern Arizona. EEOC also maintained that Wal-Mart refused to allow the agency and the Arizona Center for Disability Law, which represented the deaf men, to visit its stores to ensure it was in compliance with the Consent Decree. “It is extremely unusual for EEOC to have to ask a court to hold an employer in contempt, ” said the acting regional attorney for EEOC’s Phoenix District Office. “Both EEOC and the Arizona Center for Disability Law have made every effort to obtain Wal-Mart’s voluntary compliance with the Consent Decree, but to no avail. We are amazed that a company the size of Wal-Mart failed to provide court ordered training. Because Wal-Mart has steadfastly refused to satisfy its court-ordered obligations, we remain extremely concerned for hearing impaired individuals in Arizona and throughout the country who seek employment with Wal-Mart or are currently employed.” On December 17, 2001, the EEOC announced a comprehensive settlement with Wal-Mart over a variety of disability lawsuits. Wal-Mart paid $6.8 million to settle the lawsuits. A Federal District Court Judge in Sacramento, California presided over the settlement, which alleged that Wal-Mart’s pre-employment questionnaire, “Matrix of Essential Job Functions,” violated the Americans with Disabilities Act (ADA). Parties to the decree agreed to settle 12 other ADA lawsuits filed against Wal-Mart in 11 states. “This agreement is the result of months of negotiations by a national negotiation team for the EEOC and Wal-Mart,” the EEOC added. “Wal-Mart’s willingness to enter into this global settlement, which includes significant nationwide training on the ADA and job offers, clearly demonstrates Wal-Mart’s commitment to the ADA.” Between 1994 and 1998, Wal-Mart required disability-related information from applicants through their “Matrix” questionnaire before making conditional offers of employment, a violation of the federal disability law. As part of the decree, Wal-Mart agreed to abolish the unlawful pre-employment questionnaire and to institute an array of new or revised policies. Also under the decree, Wal-Mart agreed to provide priority consideration for hiring at its distribution centers to applicants who were qualified for employment but rejected based on medical or disability related information requested during the now defunct interview process. Steven Sanders, a former Wal-Mart employee with a hearing impairment who was one of the charging parties in the case, said, “I will now be able to return to Wal-Mart and be a part of their team. I am so grateful that the EEOC believed in me and fought for me and that Wal-Mart was willing to give me another opportunity.” For further examples of Kmart, Wal-Mart and Home Depot problems with disability rights lawsuits, go to the EEOC’s website at www.eeoc.gov.
