EEOC's ADA claim against Walmart allowed to proceed

On January 18, 2017, the Equal Employment Opportunity Commission (EEOC) filed an Americans with Disabilities Act (ADA) claim on behalf of a former Walmart sales associate in the U.S. District Court for the Eastern District of Wisconsin. On January 29, 2020, the court denied Walmart's request for summary judgment (dismissal without a trial). Although employers may be alarmed, there are practices you can implement to avoid similar pitfalls.

Background

Marlo Spaeth was a sales associate at Walmart's Manitowoc, Wisconsin, store from August 2, 1999, to July 10, 2015. She was born with Down Syndrome, a genetic disorder that causes lifelong intellectual disability and developmental delays. She typically worked from 12:30 p.m. to 4:00 p.m. During her tenure, she received positive annual performance evaluations and pay raises.

Walmart's attendance policy identified regular and punctual attendance as a required and essential function of a sales associate's job. It enforced the policy through a progressive discipline system—unexcused absences could lead to personal discussions, coaching or improvement plans with written warnings, and ultimately termination for an employee with seven or more unexcused absences in a six-month period.

From January 9, 2012, through November 21, 2014, Spaeth left work early 114 times and was absent 7 times. Walmart frequently allowed manager-authorized departures. Accordingly, a majority of these occurrences weren't counted against her, though she received a verbal coaching for absenteeism on February 3, 2012, and her reviews began noting performance issues.