Dive Brief:

• The U.S. Equal Employment Opportunity Commission on Wednesday filed a lawsuit against Wal-Mart, alleging the retail giant violated the Americans with Disabilities Act and the Civil Rights Act when one of its stores fired a longtime employee with Down’s Syndrome, according to a press release.

• That employee, Marlo Spaeth, was disciplined for absenteeism after store management, with the help of a new computerized scheduling system, changed her regular schedule of 15 years to longer and later shifts, according to the EEOC. Spaeths's disability made it difficult to adapt to the change in routine, and she was eventually fired.

• In a statement emailed to Retail Dive, Wal-Mart stood by its termination of Spaeth: “One of our core beliefs is respect for all individuals, and we do not tolerate discrimination of any kind. When a store’s needs change, we often adjust associate schedules to meet those demands,” Wal-Mart spokesperson Ragan Dickens said. “Ms. Spaeth’s job requirements were no different. We repeatedly spoke with Ms. Spaeth about the importance of working her full work schedule and she told us she understood. Despite this, she continually failed to complete her assigned shift and that is the reason she is no longer with the company. We’re sensitive to this situation and we tried to reach an amicable resolution that would support Ms. Spaeth. We remain open to continuing those discussions, but the EEOC has not acted in her best interest.”

Dive Insight:

The Americans with Disabilities Act, which became law in 1990, has enjoyed widespread bipartisan political support from its inception. While some businesses initially grumbled, the idea of making accommodations for people with disabilities to move about cities, act as consumers and voters and work in a variety of industries has become entrenched in American society. The EEOC is the major regulatory agency that enforces the law, and a slew of cases have been brought against retailers that have stumbled in their application of the law’s protections. 

Amy Jo Stevenson, Spaeth’s sister and legal guardian, went to Wal-Mart on her sister’s behalf and asked that her sister be rehired and allowed to work her usual schedule, according to a press release from the EEOC. The store management denied her request, arguing that a new computerized scheduling system couldn’t be altered. Stevenson told told USA Today that the manager told her that Spaeth would have to be treated like all other employees —almost a textbook example of what the ADA was designed to avoid when it comes to treatment of people with disabilities. 

The case calls attention to “just in time” scheduling software that has come under fire from labor advocates and lawmakers on the local and federal levels; several jurisdictions from coast to coast have banned or are considering banning the practice. The software uses algorithms to help retailers cut costs through exquisitely efficient staffing, but it also makes life difficult for workers who are managing their households, attend school, work additional jobs, or try to earn enough money to get by. In this case, the software may have interfered with one store’s ability to make accommodations for an employee that may be entitled to them under the law.

As on-call scheduling is increasingly scrutinized, retailers should be prepared to see more such concerns, warnings, legal action and even legislation from states across the country, Gail Gottehrer, a labor and employment litigator at Axinn Veltrop & Harkrider in New York, told Retail Dive last year. “This can be especially difficult for multi-state employers,” Gottehrer said. “If you’re in a lot of jurisdictions it can be complicated to get things right.”