Virginia Business Litigation Lawyer Blog

The Equal Employment Opportunity Commission (EEOC) claims a Kmart Super Center in Norfolk, Virginia, fired a store greeter because he used a cane, in violation of the Americans with Disabilities Act (ADA). In a lawsuit filed in the United States District Court for the Eastern District of Virginia, the EEOC alleges that the employee used a cane to walk and stand due to his spinal stenosis, a physical impairment of his back. His back problems did not prevent him from performing his duties as a greeter. Nevertheless, the suit claims, when he was observed using the cane, Kmart terminated his employment.

Prior to terminating the employee, Kmart allegedly refused to allow him to use the cane, even though his condition made it difficult to stand or walk without one, and his job required both. The EEOC filed the lawsuit only after Kmart refused to settle.

The EEOC is seeking most of the remedies permitted under the ADA, including reinstatement of the employee's job (or placement into a substantially equivalent position), back pay, compensatory damages, and punitive damages for intentional discrimination. The EEOC is also seeking an injunction (as it usually does in the ADA cases it brings) prohibiting discriminatory practices and compelling Kmart to adopt and execute a variety of policies, practices, and training programs to clarify to their employees and the general public that Kmart will takes steps to ensure it does not discriminate against persons with disabilities.

Title I of the ADA requires employers with 15 or more employees to provide qualified individuals with disabilities the same employment benefits and opportunities as everyone else, provided the employers can make any necessary accommodations without experiencing undue hardship. The employment privileges to which the ADA applies include recruitment, hiring, training, compensation, promotions, and even social activities. For more information, see Your Rights as a Disabled Employee.

Proving once again that no good deed goes unpunished, a former employee of BB&T Insurance Services to whom BB&T graciously paid 30 days of severance pay despite terminating his employment for cause--and apparently without requiring the employee to sign a release--sued the company for wrongful termination. On June 17, 2009, however, Judge Wilson of the Western District of Virginia in Harrisonburg had "no hesitancy" in tossing out the case on summary judgment.

The employee's job duties involved identifying, contacting, and providing services to existing and potential new insurance customers. To assist him in performing those duties, BB&T allowed him to use a company laptop with access to confidential files on the company's network. At the time of his termination, the employee had 8 years' worth of sensitive client information stored on his laptop.

While traveling, the employee left the laptop unattended overnight in his vehicle while it was parked in a hotel parking lot. It was stolen. When BB&T learned of the theft, it notified those of its clients affected by the data breach and offered them a credit-monitoring service. These programs cost the company over $24,000.

BB&T fired the employee for "cause," defined in the parties' employment agreement as "termination...for failure of Employee to adhere, after Employee has received written notice from [the Company] of such failure, and been given 30 days in which to cure such failure (if such failure can be cured), in any material respects to written policies, procedures, and the Code of Ethics established from time to time by [the Company]...." BB&T had distributed policies indicating in clear terms that all employees in possession of sensitive company information were obligated to protect the information, which duty included specifically a prohibition against leaving laptops unattended in vehicles.

The court threw out the employee's breach-of-contract case, rejecting his arguments that he was not bound by the parent company's policies, and that even if he were, he should have been given 30 days in which to "cure" the violation. The court found both arguments entirely lacking in merit, writing that no jury could reasonably agree with them.

Both the Americans with Disabilities Act (ADA) and the Virginians with Disabilities Act (VDA) prohibit stage agencies and public entities from discriminating against people with disabilities, or denying to them the benefits of their services, programs, or activities. On June 4, 2009, Virginia's highest court held that the Virginia Lottery, a state agency established to generate revenue to be used for public purposes, must comply with these laws and ensure that disabled persons are not excluded from participation in the lottery.

The tricky part is determining how, exactly, accessibility is to be achieved. The only party responsible for complying with the ADA with respect to a particular challenged government program is the party with control over that program. (See Bacon v. City of Richmond, 475 F.3d 633 (4th Cir. 2007)).

The Virginia Lottery is the entity that operates the lottery, but it is permitted to license authorized agents--independent retail stores--to sell lottery tickets. The court acknowledged that the Lottery doesn't have the authority or power to require private businesses to comply with the ADA or VDA. The Lottery cannot simply construct wheelchair ramps on the premises of the various lottery retailers. At the same time, however, the court found that the Lottery has a broader obligation to ensure its operations are conducted in compliance with the laws.

How then, is the Virginia Lottery to comply with its obligations to disabled persons when it lacks the power to force its retailers to do the same? That is a question for another day, to be determined by the trial court when the case is returned to it. The Supreme Court suggested the remedy might entail something short of ramp construction, in that "accessibility" might be achieved by means other than physical.