Would Your Company Need to Let an Intellectually Disabled Employee Work Shorter Shifts?
You have an employee with intellectual limitations who typically has worked a consistent schedule of 12 pm until 4 pm. The employee has historically been a good employee and received good marks on performance reviews. You implement a new computerized scheduling process, pursuant to which employees are all automatically scheduled for various eight hour shifts. The employee requests that she be permitted to continue working her usual four hour shifts. Do you need to accommodate that request?
The EEOC thinks so—and has just recently filed a lawsuit against Walmart on this basis, claiming that the retail giant has violated the ADA in failing to accommodate this kind of request for accommodation asserted on behalf of an intellectually disabled employee. EEOC v. Wal-Mart Stores East, LP, Civil Action No. 2:17-cv-70.
Marlo Spaeth was an employee of Walmart with Down syndrome. She had worked for Walmart for fifteen years on a regular schedule which included four hour shifts from 12:00 p.m. until 4:00 p.m. Spaeth had been a good employee, having received a number of raises and satisfactory reviews during her employment. But Walmart began using a new computerized scheduling system which resulted in Spaeth being scheduled for eight hour shifts instead. Because of her disability, Spaeth was not able to work these longer shifts. Spaeth repeatedly requested that Walmart permit her to go back to her previous schedule, but Walmart refused to do so. She ended up being disciplined for absenteeism and ultimately, the EEOC filed its lawsuit, claiming that Walmart had failed to accommodate Spaeth in violation of the ADA.
In its suit against Walmart, the EEOC asks the court to put Spaeth back to work at Walmart, as well as seeking back pay and compensatory and punitive damages. The EEOC also seeks a permanent injunction, prohibiting Walmart from failing to provide a reasonable accommodation for disability and discharging an employee for a disability. In the EEOC’s press release about this lawsuit, one its attorneys characterized the request for accommodation as “a simple scheduling request.”
The question of what constitutes a reasonable accommodation can be difficult. Employers often struggle with the idea of deviating from generally applicable policies based on requests from employees. Although it is not certain whether Walmart will actually face liability in this case, it is a reminder that employers should not ignore requests for specific accommodations simply because they conflict with broadly applicable policies and procedures applied on an automatic basis.