Does the ADA Now Require That You Accommodate Stealing?

By Eric B. Meyer

Back in 2011, the U.S. Equal Employment Opportunity Commission sued Walgreens from disability discrimination.

Specifically, the EEOC claimed that Josefina Hernandez, a cashier at Walgreens’ South San Francisco store, who suffered from diabetes, was on duty when she opened a $1.39 bag of chips because she was suffering from an attack of hypoglycemia (low blood sugar).

The EEOC further alleged that Walgreens knew of Ms. Hernandez’s disability and fired Ms. Hernandez after being informed that Hernandez had eaten the chips because her blood sugar was low, even though she paid for the chips when she came off cashier duty.

Do employers need to accommodate theft?

It’s all here in the EEOC’s September 2011 press release.

Now, fast forward to 2014, and a California federal court has just ruled in this opinion that the EEOC may be right. That is, Ms. Hernandez claim’s of disability discrimination just survived summary judgment and is headed for trial.

In its defense, citing the EEOC’s own guidance for employers, Walgreens claimed that it can never be a reasonable accommodation to require an employer to accommodate employee theft.

However, the Court refashioned the issue as whether an employer under the ADA is required to make a reasonable accommodation with respect to an employee whose disability caused that employee to violate a company’s workplace rule. To which Walgreen said, well, yeah, other guidance from the EEOC supports our position too.

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The disability may have caused the theft

But the court wasn’t buying it (pun, partially intended), deferring to a jury on whether Walgreens could treat Ms. Hernandez as it did other employees, or accommodate her misconduct:

Under the Ninth Circuit (U.S. Court of Appeals for the Ninth Circuit) case law, misconduct resulting from a disability has to be considered as part of Hernandez’s disability and creates a question of fact as to whether Hernandez’s disability was causally related to her termination. In other words, whether or not Hernandez’s disability was, in fact, a cause of her misconduct is a question of fact for the jury. Similarly, whether Walgreens should have been required to ‘accommodate’ her stealing as a ‘reasonable’ accommodation is for the jury to determine.”

Strangely, although the court concluded that “it is clear that Hernandez was fired because of her ‘misconduct’ in taking the chips without paying for them,” it also underscored that “Walgreens has not established as a matter of law that Hernandez’s conduct was ‘stealing.’ ”

So which is it? Did she steal the chips or not? And how can an employer possibly be required to accommodate theft? Frankly, I can’t make heads or tails out of this opinion.

What do you guys think? Let me know in the comments below.

This was originally published on Eric B. Meyer’s blog, The Employer Handbook.

You know that scientist in the action movie who has all the right answers if only the government would just pay attention? Eric B. Meyer, Esq. gets companies HR-compliant before the action sequence. Serving clients nationwide, Eric is a Partner at FisherBroyles, LLP, which is the largest full-service, cloud-based law firm in the world, with approximately 210 attorneys in 21 offices nationwide. Eric is also a volunteer EEOC mediator, a paid private mediator, and publisher of The Employer Handbook (www.TheEmployerHandbook.com), which is pretty much the best employment law blog ever. That, and he's been quoted in the British tabloids. #Bucketlist.

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4 Comments on “Does the ADA Now Require That You Accommodate Stealing?

  1. Well, once I was dehydrated after shopping and opened a bottle of water from those small fridges in the checkout line so I could have a drink before I passed out. In other words, I’m sympathetic.

    I think this case is absurd, but then, this is the same company that fired someone for “stealing” a pack of gum (or was it mints? I forget).

    The point is, it’s hard to believe there wasn’t a better way to handle this.

  2. She paid for the chips when she came off of cashier duty. If something is paid for, it is not stolen. There’s nothing that says that she didn’t intend to pay for the items. In all likelihood, her purse/wallet was in an employee breakroom locker while she was on the sales floor, so she wouldn’t have had access to cash while she was on the clock. A sympathetic employer would have allowed her to go get money at the time it was needed, but in any case, she paid for the item before leaving the store.

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