The ADA may require companies to accommodate employee theft. Yep, stealing.

Back in 2011, the U.S. Equal Employment Opportunity Commission sued Walgreens from disability discrimination. Specifically, the EEOC claimed that Josefina Hernandez, a cashier at Walgreens’ South San Francisco store, who suffered from diabetes, was on duty when she opened a $1.39 bag of chips because she was suffering from an attack of hypoglycemia (low blood sugar).

The EEOC further alleged that Walgreens knew of Ms. Hernandez’s disability and fired Ms. Hernandez after being informed that Hernandez had eaten the chips because her blood sugar was low, even though she paid for the chips when she came off cashier duty.

It’s all here in the EEOC’s September 2011 press release.

Now, fast forward to 2014, and a California federal court has just ruled in this opinion that the EEOC may be right. That is, Ms. Hernandez claim’s of disability discrimination just survived summary judgment and is headed for trial.

In its defense, citing the EEOC’s own guidance for employers, Walgreens claimed that it can never be a reasonable accommodation to require an employer to accommodate employee theft.

However, the Court refashioned the issue as whether an employer under the ADA is required to make a reasonable accommodation with respect to an employee whose disability caused that employee to violate a company’s workplace rule. To which Walgreen said, well, yeah, other guidance from the EEOC supports our position too.

But the court wasn’t buying it (pun, partially intended), deferring to a jury on whether Walgreens could treat Ms. Hernandez as it did other employees, or accommodate her misconduct:

“Under the Ninth Circuit case law, misconduct resulting from a disability has to be considered as part of Hernandez’s disability and creates a question of fact as to whether Hernandez’s disability was causally related to her termination. In other words, whether or not Hernandez’s disability was, in fact, a cause of her misconduct is a question of fact for the jury. Similarly, whether Walgreens should have been required to ‘accommodate’ her stealing as a ‘reasonable’ accommodation is for the jury to determine.”

Strangely, although the court concluded that “it is clear that Hernandez was fired because of her ‘misconduct’ in taking the chips without paying for them,” it also underscored that “Walgreens has not established as a matter of law that Hernandez’s conduct was ‘stealing.'”

So which is it? Did she steal the chips or not? And how can an employer possibly be required to accommodate theft? Frankly, I can’t make heads or tails out of this opinion.

What do you guys think? Let me know in the comments below…

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(*But, you need to pay for the chips.)

  • lawroomkent

    “Walgreens also does not establish – as a matter of law – that Hernandez was “stealing” as contemplated by the EEOC guidance, when Hernandez testified that she attempted to pay for the product (as she was taught) but was unable to because no one was at the cosmetics counter and paid for the product before removing it from the store.” My story is called “Accommodate Grazing” because it wasn’t clearly theft. Still, the court notes that the ADA expressly permits discipline for alcohol/drug misconduct, which implies other disability-related misconduct requires an accommodation (business necessity) analysis. Which means stealing may have to be accommodated — but we haven’t seen that yet.