Employee Terminated for Stealing Caused by Disability Entitled to Discrimination Trial

by Fenwick & West LLP
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Is an employer allowed to enforce a uniformly-applied workplace conduct policy against an employee whose misconduct was caused by her disability? A federal district court in California said “maybe, maybe not,” and determined that the matter should be resolved by a jury.

In EEOC v. Walgreen Co., Josephina Hernandez worked as a clerk at a Walgreens store for eighteen years, and was diagnosed with Type II diabetes five years into her employment. Walgreens was aware of Hernandez’s condition, and allowed her to possess candy in case of low blood sugar, keep her insulin in the break room refrigerator and take additional breaks to test her blood sugar or eat when necessitated by her diabetes. One day at work, Hernandez started shaking and sweating from low blood sugar. Because she did not have any candy with her, she opened a $1.39 bag of potato chips and ate some of them. When she began to feel better about ten minutes later, she went to pay for the chips at the cosmetic counter but no one was there. Hernandez then put the bag of chips under the counter at her cash register and resumed her restocking duties. Walgreens management discovered the chips and subsequently terminated Hernandez for violating its strict “anti-grazing” policy. Walgreens asserted it had approximately $350 million in annual losses from employee theft, and the strict policy was necessary to combat this significant theft problem. The EEOC, on behalf of Hernandez, sued Walgreens for disability discrimination and failure to accommodate under the ADA and Title VII.

Walgreens moved to dismiss the lawsuit, contending that it was entitled to rely on its neutral, non-discriminatory, and uniformly-applied workplace conduct policy in terminating Hernandez, regardless of whether her disability may have caused her to violate the policy. However, the court refused to dismiss or to rule as a matter of law on the issue, finding that whether Walgreens should have been required to “reasonably accommodate” Hernandez’s theft should be decided by a jury. The court further determined that whether Hernandez failed to properly manage her disability and whether Hernandez failed to timely request a reasonable accommodation also did not entitle Walgreens to dismissal, and were factual issues that should be resolved by a jury.

Despite the unusual facts, the court’s holding – that an employer’s reliance on a neutral, job-related workplace conduct policy may not insulate it from ADA liability – is troubling, and emphasizes the importance of individualized, fact- and circumstance-specific assessments during the disciplinary process.

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.

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