Disability Discrimination Update: Lowe’s to Pay $8.6 Million to Settle EEOC Disability Discrimination Suit Regarding Attendance Policy’s Impact On Disabled Employees

2016, Home-improvement giant, On May 13, Lowe’s, agreed to pay $8.6 million to settle a disability discrimination lawsuit brought by the U.S. Equal Employment Opportunity Commission (EEOC). According to the lawsuit, Lowe’s violated the Americans with Disabilities Act (ADA) and engaged in a pattern and practice of discrimination against people with disabilities by firing them and failing to provide reasonable accommodations when their medical leaves of absence exceeded Lowe’s 180-day (and, subsequently, 240-day) maximum leave policy. Lowe was also alleged to have violated the ADA by terminating individuals who were “regarded as” disabled, had a record of disability, and/or were associated with someone with a disability.

The Lowe’s settlement sends a clear message to employers that policies limiting the amount of leave an employee may take can violate the ADA when they call for the automatic firing of employees with a disability after they reach a rigid, inflexible leave limit. The bottom line is that additional leave is one possible reasonable accommodation that employers should explore in accommodating disabled employees. 

Federal and California law protecting disabled employees is very clear that providing medical leave and altering attendance policies is a reasonable accommodation to provide employees. California Code of Regulations, Title 2, Chapter 2 § 11068 specifically provides: “holding a job open for an employee on a leave of absence or extending a leave provided by . . . an employer’s leave plan may be a reasonable accommodation provided that the leave is likely to be effective in allowing the employee to return to work at the end of the leave, with or without further reasonable accommodation, and does not create an undue hardship for the employer.” Moreover, California Code of Regulations, Title 2, Chapter 2 § 11065, provides, “Reasonable accommodation may include, but are not limited to, such measures as: . . . (I) Modifying an employer policy; . . . (M) Providing a paid or unpaid leave for treatment and recovery, consistent with section 11068(c).” Similarly, California law is very clear that an employer is mandated to initiate the interactive process when it becomes aware that an employee has exhausted his or her leave under the employer’s leave provisions but still requires additional leave due to their disability. California Code of Regulations, Title 2, Chapter 2 § 11069 mandates that an employer “shall initiate an interactive process when [the employer] becomes aware of the possible need for an accommodation because the employee with a disability has exhausted leave under [the employer’s policy].”

Previously, Dillard’s Department Stores was forced to pay $2,000,000 to resolve claims that it terminated a class of employees nationwide for taking sick leave beyond the maximum amount of time allowed, in violation of the Americans with Disabilities Act. Verizon was also forced to pay $20,000,000 to resolve similar claims that it terminated employee pursuant to it “no fault” attendance policy.

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