So far, at least three complaints have been filed against Walmart in Pennsylvania, Illinois, and Wisconsin over the retail giant’s imposition of an April deadline for phasing out greeter positions as they now exist, according to Cheryl Bates Harris, a senior disability advocacy specialist at the National Disability Rights Network. Elderly and disabled employees who hold many of those positions have been told to reapply for “customer host” positions that, among other things, can require standing for long periods. Walmart declined to elaborate on the specific different job requirements for the new role.
The change by Walmart offers a unique moment in employment law. Discrimination cases under the American with Disabilities Act often arise from actions taken during hiring and firing, not changes in an already filled job and certainly not on a scale like the Walmart greeter position.
“I can’t think of anything that is analogous to this,” said Jennifer Mathis, a former special assistant to a commissioner of the Equal Employment Opportunity Commission. She is also the executive director of the Bazelon Center for Mental Health Law, a legal-advocacy organization.
Walmart last week said it would extend a customary 60-day job transition window provided to associates whose roles change, providing more time for employees with disabilities to seek potential accommodations or other roles. But the retailer says the changes are a business necessity.
“As we strive to constantly improve the experience for our customers, we will need to adjust roles from time to time,” Walmart said in a statement to Bloomberg Law.
The phase-out of the greeter position began nearly three years ago in a pilot program that expanded to a store-wide policy with the April transition deadline. One former greeter is already suing the company in Utah after his job function changed in 2016.
The former employee, Manase Yokwe, filed the suit on Jan. 30, alleging a store manager asked the People Greeters to identify themselves if they were restricted to “working in a sitting position.” Those who identified themselves were given severance agreements for consideration, according to the complaint.
Yokwe alleges that he didn’t receive direction for a job reassignment, or instruction to request reasonable accommodation, and later learned that other People Greeters at the Salt Lake City store also weren’t placed in alternate positions as a result of the job function change.
Businesses can require new responsibilities but the way the shift is implemented could be where Walmart opens itself up to legal liability, Harris said.
“They are absolutely setting themselves up for discrimination claims,” Loyola Law Dean and disability law expert Michael Waterstone told Bloomberg Law.
Workers are required by law to file a charge with the Equal Employment Opportunity Commission before suing an employer alleging unlawful discrimination under the ADA.
The EEOC has sued Walmart on behalf of other workers alleging ADA violations, like a Maine worker who was relocated to a new store after becoming disabled on the job. The agency has filed 431 suits with disability bias claims from fiscal year 2010 through fiscal year 2017, recovering more than $78.5 million in monetary recovery for workers in the same time period. In the last five years, Walmart has faced 155 ADA cases, according to Bloomberg Law data.
Burden of Proof
Employees filing discrimination lawsuits face an uphill battle. They lose about nine times out of 10 in court, according to Harris.
The workers will need to prove that Walmart knew employees had disabilities and acted deliberately to push them out of their jobs. That’ll be difficult with Walmart likely to say that the job changes were necessary business decisions, Harris said.
Court cases will likely “come down to what Walmart can show in terms of how essential” the new functions are, Mathis said.
Customer demands change over time, and in response, businesses must change their responses, said Thomas Kochan, co-director of the MIT Sloan Institute for Work and Employment Research at the MIT Sloan School of Management.
“Walmart is under enormous pressure to improve customer service because they have such low customer service ratings,” he said. “It has, no question, the right to change jobs and restructure the mix of jobs.”
There’s some precedent for workers calling out job changes that impact people with disabilities.
Rite Aid in 2011 changed the essential functions pharmacists must perform to include the administration of immunizations. Pharmacist Christopher Stevens said that change made it impossible for him to complete essential functions of his job because of an extreme fear of needles, which he claimed was a protected disability under the ADA, according to a U.S. Court of Appeals for the Second Circuit opinion. The jury initially awarded Stevens monetary relief of more than $2.6 million, but the court nixed the verdict in 2017.
“Because performing immunization injections was an essential job requirement and Stevens presented no evidence of a reasonable accommodation that would have allowed him to perform immunizations at the time of his dismissal, no juror could reasonably conclude that Stevens was ‘qualified to perform the essential functions of his job, with or without reasonable accommodation,’” the opinion said.
A Bad Look
Plaintiffs could potentially point to another time Walmart considered changing job requirements in order to push certain workers out.
Walmart’s recent change reminded Loyola’s Waterstone of a leaked 2005 internal memo in which the company said it wanted to change job descriptions to require more physical activity. The company said at the time that the move would attract a healthier workforce and reduce soaring health costs. It attracted widespread criticism and condemnation.
If nothing else, Kochan and Harris said, Walmart went about the change in greeter jobs in the wrong way.
“You say the word ‘disability’ and people automatically think of the things that you can’t do,” Harris said. “So they automatically assume a certain level of incompetence. And quite frankly, that’s where I think the biggest problem lies.”
Even if Walmart isn’t legally obligated to maintain the jobs as they are, the decision may ding its reputation with the public, Kochan said.
“Walmart is a big public company that has a reputation it ought to value,” he said. “This was very poorly handled.”