The U.S. Equal Employment Opportunity Commission (EEOC) recently sued Walmart in federal court for terminating employees whose disabilities prevented them from passing an employment test.
The lawsuit claims Walmart managers in Arkansas used an unlawful qualifications standard, the Pathways Graduation Assessment, and didn’t provide reasonable accommodations for workers with disabilities, as required by the Americans with Disabilities Act (ADA). It claimed the test screened out or tended to screen out people with disabilities. The EEOC said the assessment was not job-related and consistent with business necessity in certain jobs.
Walmart, headquartered in Bentonville, Ark., is the largest retailer in the world, with 2.1 million employees worldwide and 10,500 stores in 20 countries. Walmart required workers across the United States to take the assessment from 2015 until 2020. The computer-based assessment measured employees’ knowledge on customer service, inventory essentials, retail fundamentals and merchandising. The company fired workers who didn’t pass the test after three attempts, according to court documents.
“Employees with disabilities face far too many obstacles in life, and the workplace should not be one of those obstacles,” said Edmond Sims, acting district director of the EEOC’s Memphis district office, which has jurisdiction over Arkansas, Tennessee and part of Mississippi. “Employees with disabilities who are successfully performing their jobs should be commended, not terminated.”
Walmart spokesperson Madalyn Klika said, “We created our Pathways program with the needs of all associates in mind, and this included advising them of accommodation options through up to seven audial and visual pop-up notifications as they took the training and assessment. We discontinued the program several years ago and plan to defend the company.”
One of the plaintiffs, an apparel associate, is a deaf woman who uses American Sign Language as her first language and reads English at a fourth-grade level. Walmart didn’t provide her with an interpreter for the test. Another plaintiff, an overnight stocker, has intellectual disabilities and language disabilities with difficulty speaking and reading. Walmart allegedly didn’t offer her reasonable accommodations. Both plaintiffs failed the test three times and were fired in 2018, according to court documents.
Legal Standard
Employers can have performance standards that employees must meet with or without reasonable accommodation, said Jan Garrett, deputy director of ADA Programs at the Pacific ADA Center in Oakland, Calif. But this can violate federal anti-discrimination laws if an employer intentionally uses them to discriminate based on race, color, sex, national origin, religion, disability or age. “Use of tests and other selection procedures can also violate the federal anti-discrimination laws if they exclude people in a particular group by race, sex or another covered basis more than others, unless the employer can justify the test or procedure under the law,” she said.
Employers must “use caution when they request disability or medical information and ensure that required medical exams and testing of employees is job-related and consistent with business necessity,” Garrett added. “Employers must also make sure they are not testing only employees with disabilities.”
An employer can show a test is job-related and consistent with business necessity if it is necessary to the safe and efficient performance of the job, according to EEOC guidance from 2007. “This means the test must be a legitimate measure of an individual’s ability to perform the essential functions of the specific position held or desired, with or without reasonable accommodations,” said Jill Jensen-Welch, an attorney with Dickinson Law in Des Moines, Iowa.
Under the ADA, employers cannot give pre-employment tests to job applicants with disabilities in a format or manner that requires them to use their impaired skill, unless the test is designed to measure that skill, according to an EEOC fact sheet.
“Be sure to notify applicants and employees that they can request reasonable accommodations with regard to the test, and then follow through with an interactive process, as needed, for disabled persons,” Jensen-Welch said.
For testing, examples of reasonable accommodations may include allowing extra time or switching from written to verbal format, according to the Job Accommodation Network, a service of the U.S. Department of Labor’s Office of Disability Employment Policy. Under the ADA, an employer isn’t required to provide an accommodation if it would cause an undue hardship, meaning a significant difficulty or expense.
If two assessments are available that serve the employer’s legitimate business interest and are equally valid, the employer should use the assessment that has been demonstrated to have less adverse impact on protected groups, according to the federal government’s Uniform Guidelines on Employee Selection Procedures, issued by the EEOC.
These uniform guidelines do not apply to claims made under the ADA, but they can apply to claims of discrimination based on sex, race or ethnicity, Jensen-Welch said.