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Thursday, October 1, 2009

Sears Hit on Inflexible Leave Policy



Sears Hit on Inflexible Leave Policy

Alabama@ Work

By Tommy Eden, Attorney

On Monday September 29, 2009, a Federal Judge in Chicago approved a Sears Roebuck Settlement of $6.2 Million for Disability Bias. It was the largest monetary amount ever paid in a single EEOC ADA lawsuit. The employees were allegedly terminated by Sears based on an inflexible workers' compensation leave exhaustion policy by which Sears terminated employees instead of providing them with reasonable accommodations for their disabilities.

The case arose from a charge of discrimination filed with the EEOC by a former Sears service technician, John Bava who was injured on the job, took workers' compensation leave, and while still somewhat disabled by the injuries, repeatedly attempted to return to work. It was claimed in the Complaint that Sears could never see its way clear to provide Bava with a reasonable accommodation which would have put him back to work, but instead fired him when his FMLA leave expired.
Pre-trial discovery in the lawsuit revealed that hundreds of other employees who had taken workers' compensation leave were also terminated by Sears without seriously considering reasonable accommodations to return them to work while they were on leave, or seriously considering whether a brief extension of their leave would make their return possible. It was discovered that well over a hundred former employees who wanted to return to work with an accommodation but were terminated by Sears. Some of them only found out they had been fired when their discount cards were rejected while shopping at Sears.
In addition to providing monetary relief, the three-year consent decree includes an injunction against violation of the ADA and retaliation. It requires that Sears amend its workers' compensation leave policy, provide written reports to the EEOC detailing its workers’ compensation practices' compliance with the ADA, train its employees regarding the ADA, and post a notice of the decree at all Sears locations.
The Judge will hold a final hearing in February 2010, at which time the court will make a final determination as to the fairness of the individual distributions from the $6.2 million settlement fund.
Common Sense Counsel: This record settlement sends the strongest possible message that the EEOC will use its enforcement authority boldly to protect those rights and advance equal employment opportunities for individuals with disabilities. Employers should no longer apply an inflexible and universal leave limits policy without seriously considering the reasonable accommodation requirements of the ADA. In light of this case it is important that all Alabama employers amend their workers' compensation leave policies, educate yourself on the workers’ reasonable accommodation compensation practices in compliance with the ADA and train supervisors regarding the ADA 

Tommy Eden is a Lee County native, an attorney with the local office of Constangy, Brooks & Smith, LLP and a member of the ABA Section of Labor and Employment Law and serves on the Board of Directors for the East Alabama SHRM Chapter. He can be contacted at teden@constangy.com or 334-246-2901. Blog at www.alabamaatwork.com