EEOC Sues Kmart for Disability Discrimination

by U.S. Equal Employment Opportunity Commission (EEOC)
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Hyattsville Store Rejected Applicant Who Needed a Reasonable Accommodation For His Kidney Condition, Federal Agency Charges

BALTIMORE - Kmart Corporation, a leading national retailer, violated federal law by refusing to employ as a store associate an individual with a disability who needed a reasonable accommodation, the U.S. Equal Employment Opportunity Commission (EEOC) charged in a lawsuit it filed today.

According to the EEOC's suit, after Kmart offered Lorenzo Cook an associate position at its Hyattsville, Md., store, the hiring official scheduled him for an appointment to complete his new-hire paperwork and submit to drug screening.  When Cook later met with the hiring official as requested, he advised the manager that he suffered from kidney failure and could not provide a urine sample for urinalysis because he undergoes dialysis.  Cook expressed his willingness to participate in drug testing and asked about reasonable accommodations such as drug testing not requiring urine, including blood or hair testing.  The manager said she needed to discuss his request with her colleagues.  About two weeks later, without discussing possible alternatives to the urinalysis, the hiring manager told Cook that Kmart's policy required all new hires to undertake a standard urine test.  Kmart denied Cook employment because he could not complete the urinalysis, the EEOC said. 

Such alleged conduct violates the Americans with Disabilities Act (ADA), which requires employers to provide a reasonable accommodation, including during the application and hiring process, unless it can show it would be an undue hardship.  The ADA also prohibits employers from refusing to hire individuals because of their disability.

The EEOC filed suit (EEOC v. Kmart Corporation; Sears Holdings Management Corporation; Sears Holding Corporation; Civil Action No. 13-cv-02576) in U.S. District Court for the District of Maryland after first attempting to reach a voluntary pre-litigation settlement through its conciliation process.  The EEOC seeks injunctive relief prohibiting Kmart from discriminating based on disability, equitable relief that provides equal employment opportunities for individuals with disabilities, and lost wages, compensatory and punitive damages and other affirmative relief for Cook.

"Mr. Cook was offered a job as an associate based on his qualifications, and simply needed a reasonable accommodation to complete the hiring process and begin working," said EEOC Philadelphia Regional Attorney Debra M. Lawrence.  "The EEOC will take action when an employer unjustifiably refuses to provide, or even consider, making simple changes to its post-offer screening practices to enable an individual with a disability to start working."

EEOC Philadelphia District Director Spencer H. Lewis, Jr. added, "Given the resources of a major national employer like Kmart, it is hard to understand how it would have posed an undue hardship for the retailer to allow Mr. Cook to submit to a blood test as he offered to do, instead of rigidly requiring a urine sample that he could not provide due to his kidney impairment."

According to its website, http://www.searsholdings.com/about/kmart/, Kmart, a wholly owned subsidiary of Sears Holdings Corporation, operates a total of 1,221 Kmart stores across 49 states, Guam, Puerto Rico, and the U.S. Virgin Islands.

One of the six national priorities identified by the EEOC's Strategic Enforcement Plan (SEP) is for the agency to address emerging and developing issues in equal employment law, including issues involving the ADA and pregnancy-related limitations, among other possible issues.

The EEOC enforces federal laws prohibiting employment discrimination.  Further information about the agency is available at its website, www.eeoc.gov.  The Philadelphia District Office of the EEOC oversees the agency's enforcement efforts in Pennsylvania, Maryland, Delaware, West Virginia and parts of New Jersey and Ohio.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

© U.S. Equal Employment Opportunity Commission (EEOC) | Attorney Advertising

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