Legal Column
BY BOB GREGG
Make Sure Training
Isn’t Ignored
Case of the Month: The following case illustrates three areas of
caution: acting too quickly, failure to
train managers and consent decrees
for large organizations. In Brady
v. Wal-Mart Stores, Inc. (2nd Cir.,
2008), a jury verdict of $1 million
was upheld in an Americans with
Disabilities Act (ADA) case filed by a
newly hired pharmacy employee.
»Manager acted recklessly,
transferred employee to parking-lot duty.
The employee spoke slowly and had
vision problems caused by cerebral
palsy. Rather than trying to explore
training and accommodation, the
pharmacy supervisor abruptly
had the new employee transferred
to picking up garbage and shopping carts in the parking lot. The
employee had worked only three
shifts before the abrupt transfer.
»Ignoring training and no
administrative oversight (beware
of videos and self-study).
The manager should have known
that he was violating disability
laws. Wal-Mart had clear training tapes that all managers were
required to watch. However,
there was no oversight. The store
seemed to think this sort of training was not to be taken seriously.
Supervisors routinely skipped the
videos or computer-based content
and just took the test at the end
of the materials. They kept retaking the test until they got enough
right answers, with no oversight
to see whether they were using
“crib sheets.”
»Consent decree nails
the liability.
The jury also considered a consent
decree that Wal-Mart had entered
in another settlement with the
Equal Employment Opportunity
Commission (EEOC). Wal-Mart
had agreed to refrain from
disability discrimination. This was
seen as evidence that Wal-Mart
should have known its obligations
to employees with disabilities and
that it acted in disregard of those
obligations in this situation.
The messages of this case are:
1. Don’t be hasty. Engage in the
interactive process required by the
ADA before taking action.
2. Video and computer-training
oversight is needed. No matter
how good, this training must be
monitored and verified.
3. Be careful with consent
decrees. A large company cannot
realistically guarantee a future
without discrimination. Watch the
wording before signing off.
You May Not Be Immune
State agencies and state universities
have 11th Amendment immunity
from suit under many laws, including parts of the Family and Medical
Leave Act (FMLA). They cannot be
sued for monetary damages. However, they can be sued for injunctive
relief to make them stop an illegal
practice or to force future relief and
compliance. A federal court has now
decided that wrongful discharge of a
university employee while on FMLA
leave created a “continuing violation.” The employee could sue for
