By: Ruth Kraft, Esq.
As long as I have been an employment lawyer, one basis for discharge has been sacrosanct---so long as the employer could prove it---and that is theft. Every one of your employee handbooks should provide that progressive discipline need not apply to every circumstance, including theft.
However, that assumption has now been challenged by a ruling by a federal district court in California. Interestingly, the facts are quite similar to those of a case I tried in 2009. In EEOC v. Walgreens, a clerk who had worked there for 18 years was a Type II diabetic. The employer was aware of her medical condition and made reasonable accommodations. It permitted her to keep candy on-hand, to use the break room refrigerator to store her insulin and to take additional breaks as necessary to test her blood sugar or eat. While working, she started to perspire and shake, symptoms of low blood sugar. She did not have candy on hand. Instead, she opened a bag of potato chips and ate some. When she felt better, ten minutes later, she went to the cosmetics counter to pay for them but the register was not staffed. She put the bags under the counter at her own cash register and started to restock merchandise. Upon discovery of the potato chips, Walgreens summarily discharged her for violating a strict “anti-grazing” policy. (Let me add that this is one policy I have never entered into a manual and that I am as guilty of grazing or noshing as the next person.) Walgreens contended that employee theft produced $350 million in annual losses and that its zero tolerance policy was necessary as a consequence. The employee went to the EEOC which sued Walgreens for disability discrimination and failure to accommodate under the Americans With Disabilities Act and Title VII of the Civil Rights Act.
Walgreens filed a motion for summary judgment, contending that it was entitled to rely on a facially neutral,non-discriminatory, uniformly-applied workplace conduct policy, regardless of whether the worker’s disability caused her to violate the policy. The court rejected the argument, finding that the question of whether a reasonable accommodation for the theft, not the disability, is a jury question. It further held that the worker’s potential failure to manage her diabetes to avoid this scenario was also a fact question.
In one case I tried in the New York courts, a retail worker with low blood sugar tore open a candy bar to stave off an attack. In another, a worker cleaning up inadvertently ate two potato chips in violation of the employer’s known policy. I always asked employer’s counsel: why are we here? What was the employee’s intent? In both of my cases, the employer went so far as to call the police. I think that employers have to exercise basic common sense. Discipline resulting in immediate discharge, particularly when an employee has a chronic health condition will lead her straight into the arms of regulators. Do you I think that employers need to be tough on theft? Absolutely! And I do think that plaintiffs who commit workplace fraud and then seek to lay the blame on obsessive compulsive disorder and other psychiatric conditions are simply not taking responsibility for their own volitional course of conduct. However, we must be mindful of the principle of reasonableness and the importance of fact-driven decision making in the disciplinary process.
However, that assumption has now been challenged by a ruling by a federal district court in California. Interestingly, the facts are quite similar to those of a case I tried in 2009. In EEOC v. Walgreens, a clerk who had worked there for 18 years was a Type II diabetic. The employer was aware of her medical condition and made reasonable accommodations. It permitted her to keep candy on-hand, to use the break room refrigerator to store her insulin and to take additional breaks as necessary to test her blood sugar or eat. While working, she started to perspire and shake, symptoms of low blood sugar. She did not have candy on hand. Instead, she opened a bag of potato chips and ate some. When she felt better, ten minutes later, she went to the cosmetics counter to pay for them but the register was not staffed. She put the bags under the counter at her own cash register and started to restock merchandise. Upon discovery of the potato chips, Walgreens summarily discharged her for violating a strict “anti-grazing” policy. (Let me add that this is one policy I have never entered into a manual and that I am as guilty of grazing or noshing as the next person.) Walgreens contended that employee theft produced $350 million in annual losses and that its zero tolerance policy was necessary as a consequence. The employee went to the EEOC which sued Walgreens for disability discrimination and failure to accommodate under the Americans With Disabilities Act and Title VII of the Civil Rights Act.
Walgreens filed a motion for summary judgment, contending that it was entitled to rely on a facially neutral,non-discriminatory, uniformly-applied workplace conduct policy, regardless of whether the worker’s disability caused her to violate the policy. The court rejected the argument, finding that the question of whether a reasonable accommodation for the theft, not the disability, is a jury question. It further held that the worker’s potential failure to manage her diabetes to avoid this scenario was also a fact question.
In one case I tried in the New York courts, a retail worker with low blood sugar tore open a candy bar to stave off an attack. In another, a worker cleaning up inadvertently ate two potato chips in violation of the employer’s known policy. I always asked employer’s counsel: why are we here? What was the employee’s intent? In both of my cases, the employer went so far as to call the police. I think that employers have to exercise basic common sense. Discipline resulting in immediate discharge, particularly when an employee has a chronic health condition will lead her straight into the arms of regulators. Do you I think that employers need to be tough on theft? Absolutely! And I do think that plaintiffs who commit workplace fraud and then seek to lay the blame on obsessive compulsive disorder and other psychiatric conditions are simply not taking responsibility for their own volitional course of conduct. However, we must be mindful of the principle of reasonableness and the importance of fact-driven decision making in the disciplinary process.
Have a question or comment?
Contact Jennifer at Jennifer@Kirschenbaumesq.com or at (516) 747-6700 x. 302.
Contact Jennifer at Jennifer@Kirschenbaumesq.com or at (516) 747-6700 x. 302.