Walmart Liable for Changing Disabled Employee’s Schedule

Takeaway: Employers must exercise caution when making companywide scheduling changes if such changes would adversely affect a person with a disability.

The 7th U.S. Circuit Court of Appeals upheld a $419,663 judgment against Walmart for changing the schedule of an employee with Down syndrome as part of companywide moves.

The employee was born with Down syndrome, which, in addition to presenting with distinct physical characteristics, results in developmental delays and lifelong intellectual disabilities. She was hired by a Walmart store in Manitowoc, Wis., in 1999 and assigned to the domestic department, handling tasks such as folding towels, putting away rugs, and tidying items in the aisles. She worked from noon to 4 p.m. up to four days a week, excluding Thursdays and weekends.

According to a Down syndrome specialist, routine is especially important for someone with Down syndrome. The employee’s sister testified that the employee did not have the mental faculties to process change, so it was extremely difficult to change her habits and routines. Walmart store managers confirmed this, recounting instances in which they tried to assign the employee new tasks and she became confused or did not initially perform the tasks.

Over 15 years, the employee earned positive annual performance evaluations and steady raises. She was rated as a solid performer who met expectations, and she even exceeded expectations in particular areas. She told the evaluator that she liked her job and liked to help people.

In November 2014, the Walmart home office in Bentonville, Ark., issued a directive that managers were to cease making manual adjustments to computer-generated staff work schedules unless they had a business justification for doing so. The computerized work schedules were intended to ensure that staffing met the needs of each store based on customer traffic patterns. Prior to this announcement, managers at the Manitowoc store had exercised discretion in the employee’s case in order to maintain her work schedule of noon to 4 p.m. After the directive was issued, managers no longer had the discretion to make such changes unilaterally because adjustments became subject to a strict approval process.

At first, the computer system did not generate any hours at all for the employee because her 2006 work availability form indicated that she was only available from 12:30 p.m. to 4:00 p.m. When she complained, she was told that she needed to accept a 1:00 p.m. to 5:30 p.m. shift, which she did.

The employee had difficulty adapting to her new schedule. She would often leave an hour or more early—sometimes complaining that she was feeling hot—and she was absent without prior notice from some shifts altogether. The employee told her sister that the new hours reflected in her time slip were wrong because they were not from noon to 4 p.m. as before.

The employee’s sister telephoned the staff coordinator and asked that the schedule be switched back because her sister was getting too hot, was not able to eat, and was missing her bus to get home. She explained that her sister had Down syndrome and could not physically handle working that late.

Nevertheless, Walmart kept the employee on the new 1 p.m. to 5:30 p.m. schedule. The employee continued to frequently leave early or not show up, resulting in multiple attendance infractions. By July 10, 2015, she had accumulated 17 such occurrences, with each occurrence representing multiple incomplete shifts, and Walmart fired her. The employee’s sister and her mother met with several Walmart managers to discuss her termination, invoking the employee’s right to accommodation under the Americans with Disabilities Act (ADA) and asking that she be given her job back and restored to her old schedule. Walmart concluded that she was properly discharged and declined to reinstate her.

The U.S. Equal Employment Opportunity Commission (EEOC) brought suit against Walmart, alleging failure to accommodate the employee by not modifying her work schedule. After a four-day trial, the jury found in the EEOC’s favor and awarded $150,000 in compensatory damages and $125 million in punitive damages, the latter of which the district court reduced to $150,000. The court also awarded $44,758 in back pay, $5,979 in prejudgment interest, and $68,926 for taxes, for a total award of $419,663. The EEOC also sought an injunction against Walmart, but the district court denied this relief as unnecessary because Walmart’s actions were not willful.

Walmart appealed the decision to the 7th Circuit, and the EEOC appealed the rejection of its injunction request. The 7th Circuit upheld the judgment against Walmart, finding significant evidence that it intentionally changed the employee’s schedule even after knowing of her disability and difficulties with change. The 7th Circuit remanded the injunction request for the district court to reconsider whether it should be granted.

EEOC v. Wal-Mart Stores East, L.P., 7th Cir., Nos. 22-3202 & 32-1021 (Aug. 27, 2024).

Jeffrey Rhodes is an attorney with McInroy, Rigby & Rhodes LLP in Arlington, Va.