Take That! EEOC Says Stealing May Be a ‘Reasonable’ Disability Accommodation

We all understand that granting reasonable accommodations under the Americans with Disabilities Act (ADA) may include providing employees with a new chair, changing work schedules or granting more flexible breaks. But a new case this month says employers may have to allow a worker to steal their own merchandise as a reasonable accommodation. Really? What’s reasonable about that? Grab a bag of chips and read on … 

Case in Point: Long-time Walgreens employee Josephina Hernandez had diabetes, so store managers gave her permission to bring candy to work in case of low blood sugar or a hypoglycemic attack.

One day Hernandez had such an attack while stocking shelves, but she didn’t have any candy on her. So, she grabbed a bag of chips off the shelf and started eating them to raise her blood sugar. She allegedly tried to pay for the $1.39 chips soon after eating them, but nobody was at the counter where employees paid for store merchandise.

Walgreens has a strict “anti-grazing” policy so it fired Hernandez for taking merchandise before paying for it. The EEOC took up the cause and sued on behalf of Hernandez, claiming Walgreens had a duty under the ADA to provide a reasonable accommodation “which may require an employer to be flexible and open-minded.” That, the EEOC said, should include allowing the employee to take a $1.39 bag of chips before paying for it.

Walgreens defended the claim by saying it loses more than $350 million per year because of worker theft and, therefore, the company applies its anti-grazing policy uniformly. Employees are consistently fired for theft, regardless of their rank, employment history or the value of the items taken.

Result: The court denied Walgreen’s request for summary judgment and sent the case to a jury, saying employee misconduct resulting from a disability could be considered to be part of the disability. The court noted that, “whether Walgreens should have been required to ‘accommodate’ (the employee’s) stealing as a ‘reasonable’ accommodation is for the jury to determine.” (EEOC v. Walgreen Co., N.D. Cal., No. 3:11-cv-04470, 4/11/14)

When it filed the suit, the EEOC issued a press release saying that, “accommodating disability does not have to be expensive, but it may require an employer to be flexible and open-minded. One wonders whether a long-term, experienced employee is worth less than a bag of chips to  Walgreens.”

3 Lessons Learned … Without Going To Court

1. Take. Take a lesson from this case and consult your legal team before terminating any employee with a disability.
2. Loot. Business records showing you consistently terminate all employees for violating policies may be good loot for defending employment lawsuits.
3. Pinch. Pinch yourself. Stealing may join the list of reasonable accommodations.