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HIV Grocery Checkout Clerk

hardyhardy 2 Posts
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My client has recently received an EEOC charge letter which was the first indication of a problem. It seems that a grocery checkout clerk was hired in early August and in mid-August, the store manager found out that she was HIV Positive and terminated her--on the grounds that "we can't have that in our checkout clerks". Management did not find out about the action until November when the EEOC letter came out.
Response to the EEOC letter was a bit flakely by stating that the accomodations would need to be directed to the 950 customers coming into the store on a daily baiss and that trying to protect them would be an extreme burden on the company, etc. Had management learned of the problem when it was first divulged to the store manager, I am sure that a different approach would have been taken. However, considering the present position of this grocery store, any suggestions as to how to defend legal actionb--assuming that it is coming in the near future.
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  • 5 Comments sorted by Votes Date Added
  • SDDCHRSDDCHR 192 Posts
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    I don't know if the grocery store really has a position here? Two things to look at when it comes to HIV and ADA. First, does the physical symptoms of the employee prevent them from doing the essential functions of a check-out clerk? And second, I don't understand what the store is getting at...Are they saying that the employee is a direct threat to the customers? If so, is this based on reasonable medical judgement? One thing the courts will look at under a direct threat defense is what is the likelihood of transmitting HIV to others based upon the employees position. In this case, I don't see how this is a problem. So, if you are defending the employee, the above would be my defense. If you're defending the store.....good luck!
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  • Don DDon D 9,834 Posts
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    I think two things are in order: (1) a quick reversal of the action that was taken by an 'ignorant' manager, and (2) quick training for all managers and supervisors by a competent, knowledgeable trainer. The EEOC is not as interested in suing you as they are in correcting the business mistake of terminating the ADA protected employee with backpay and immediate rehire. P.S: Don't overreact to my use of the word 'ignorant'. I can think of no word that's more applicable in this scenario.
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  • hardyhardy 2 Posts
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    Thanks Don D. We broached the subject of re-hire prior to
    responding to the EEOC so that fact was in our response. However,
    the attorney for the clerk wants to wait for the "response
    process" to run its course. Then he will probably sue the hell
    out of my client.
    We did suspend the manager for 2 weeks and are requiring him to
    attend and HRHero seminar in mid-January. I think my client has
    taken some good moves but we may still get stung.
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  • Don DDon D 9,834 Posts
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    My suggestion would be to make that offer immediately to the EEOC, not to the clerk's attorney. The rejection of your offer by the complainant, although a significant action, is somewhat irrelevant in the EEOC process since their efforts are geared toward rectifying the perpetrated wrong, swiftly. Then let him reject it if he will......Your case will be stronger in court if you show that you immediately tried to rectify the misdeed by restoring the person to her/his position with back pay and your offer through the EEOC was rejected by the complainant. Sounds like a good one for summary judgement on your part if you were to make that move right away. It will add to your credibility in the courtroom (if it comes to that) for the EEOC record to reflect your conciliatory offer to make the person whole. That will no doubt improve your standing as opposed to making no offer at all. I don't pretend to have any legal education; but, I have suffered through quite a few EEOC charges over the years. Good luck.
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  • Margaret MorfordMargaret Morford 1,143 Posts
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    Don D. is exactly right. Go to the EEOC, tell them the manager made a mistake and that your company is going to make it right. Offer the clerk her job back immediately with back pay. Your lawyer can tell you if that will cut off her damages. Tell the EEOC you've offered "full remedy." Many times the EEOC will dismiss the claim saying that the employer offered full remedy and the EEOC goes away. Then you can beat the plaintiff's lawyer with the EEOC's statement that you offered full remedy.

    Margaret Morford
    theHRedge
    615-371-8200
    [email]mmorford@mleesmith.com[/email]
    [url]http://www.thehredge.net[/url]
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