Diversity Insight

Taking a Load Off: EEOC Cracks Down on Unlawful Accommodation Policies

A Texas-based employer has agreed to pay $2.65 million to settle a lawsuit in which the Equal Employment Opportunity Commission (EEOC) claimed it violated federal discrimination laws by refusing to accommodate food servers with disabilities. You can avoid a similar outcome by implementing reasonable accommodation procedures.ADA

Standard Policy Isn’t Sufficient

In September 2018, the EEOC brought charges against Crossmark, Inc., a Plano-based sales and marketing services company that provides part-time food demonstrators to Walmart and Sam’s Club stores. The agency claimed Crossmark failed to reasonably accommodate its disabled workers when it forced them to stand for the majority of their shifts.

Before Walmart and Sam’s Club contracted with Crossmark to provide staff for in-store promotions, they used their own employees to serve food samples. Notably, disabled Walmart or Sam’s Club employees who worked in-store promotion events were allowed to sit for at least 10 minutes every 2 hours. Once Crossmark hired the employees, however, they were denied that accommodation and terminated.

For example, Rhonda Whitecotton—a former Crossmark employee who suffers from heart disease, diabetes, and arthritis—asked to sit on a stool for 20 minutes every 2 hours. Crossmark’s policy at the time was to automatically deny requests for any accommodation beyond the “standard stool accommodation” policy, which allowed workers to sit for only 10 minutes every 2 hours.

According to the EEOC’s complaint, if an employee was unable to work with the standard 10-minute sitting accommodation, “it was Crossmark’s policy and practice to terminate his or her employment.”

In November 2019, Crossmark agreed to pay $2.65 million to compensate more than 100 former food demonstrators across the country who were affected by its stool accommodation policy. In addition to providing monetary relief, the settlement requires Crossmark to designate Americans with Disabilities Act (ADA) coordinators to address requests for accommodations, revise its accommodation policies, provide ADA training to managers and employees, and establish a toll-free number so employees can obtain information about requests for accommodations.

ADA’s Reasonable Accommodation Requirement

The ADA, a federal law designed to prevent discrimination against individuals with disabilities and allow them equal opportunities in the workplace, requires covered employers to provide reasonable accommodations when disabled employees need them to perform their jobs or enjoy the same benefits offered to other employees.

Accommodations vary based on the needs of the individual employee. For example, an employee with diabetes may need regularly scheduled breaks during the workday to eat properly and monitor his insulin levels.

The ADA does include an “undue hardship” exception, which allows an employer to deny an accommodation if it would be too difficult or expensive to provide, given the organization’s size and financial resources. Most accommodations are inexpensive, however, and you can offset the costs by taking advantage of tax credits.

Lesson Learned

Employers covered by the ADA should consider implementing written policies and procedures addressing reasonable accommodations. As an alternative to written procedures, you might consider including a short statement in your employee handbook indicating you will provide reasonable accommodations for qualified individuals with disabilities, along with the contact information of the employees who handle accommodation requests.

The EEOC recommends that once you receive an accommodation request, you engage in an “interactive process” in which you and the employee discuss her request, identifying her needs and the appropriate reasonable accommodation. If more than one accommodation would work, you may choose the one that’s less costly or easier to implement.

As L. Jack Vasquez, Jr., director of the EEOC’s St. Louis District Office, stated: “Providing reasonable accommodation to qualified workers who are able to perform the essential functions of their jobs is not only required by law[—]it is smart business.”