On Sept. 29, 2009, Sears, Roebuck and Company agreed to pay $6.2 million as
part of a consent decree to resolve a class action lawsuit filed by the U.S.
Equal Employment Opportunity Commission (EEOC) in federal court in Chicago. The
EEOC alleged that Sears violated the Americans With Disabilities Act (ADA) by
maintaining an “inflexible” workers' compensation leave exhaustion policy,
whereby Sears automatically terminated employees after 12 months of leave
instead of making a case-by-case determination whether a reasonable
accommodation might have allowed employees to return to work.
In addition to providing monetary relief, the three-year consent decree
includes an injunction against violating the ADA and retaliation. It also
requires that Sears amend its workers’ compensation policy by: (1) notifying
affected employees of their right to request a reasonable accommodation at least
45 days before their leave expires; and (2) giving employees examples of
reasonable accommodations, including part-time work, reassignment and additional
leave. The consent decree further requires that Sears provide written reports to
the EEOC explaining how its workers’ compensation practices comply with the ADA,
train its employees regarding the ADA, and post a notice of the consent decree
at all Sears locations.
Sears did not admit wrongdoing or liability, and the consent decree did not
address the legality of Sears’ policy. However, the EEOC’s Chicago District
Office recently filed at least two other federal lawsuits asserting claims under
the ADA against employers with similar inflexible 12-month leave policies.
EEOC v. United Parcel Service, Inc. (No. 09-C-5291) was filed on Aug. 27,
2009, and EEOC v. SuperValu, Inc. and Jewel-Osco (No. 09-CV-5637) was
filed on Sept. 11, 2009.
These cases suggest that employers should re-evaluate their leave of absence
policies to ensure that company leave, attendance and other practices are
flexible and provide employees an opportunity to request a reasonable
For advice, assistance or training regarding leave of absence policies and
the ADA or in updating your company’s current practices, please contact the
authors or any other member of the McGuireWoods
Labor & Employment
or Employee Benefits teams.