In my occasional series of blog posts involving I-can’t-believe-they-said-that employee excuses, here’s one that made my jaw drop.
Many of you are familiar with the Wal-Mart greeter – that friendly person at the store entrance who used to welcome shoppers with a hello and perhaps an offer of assistance. (And I say “used to” because apparently the position has been replaced by a “customer host” position that provides more customer service and theft prevention functions throughout the store). This position, which was created by founder Sam Walton, was a large part of the company culture. It seems obvious that the essential function of a greeter is, well, to greet customers. Which would necessarily require the greeter to actually be present in order to do so, right?
Well, not according to one Wal-Mart greeter, who has literally made a federal case of it. In Benson v. Wal-Mart Stores East, the employee became a greeter in 2016, following a workplace injury (as to which she filed – and ultimately lost – a previous disability discrimination claim). The employee’s attendance was not good – she missed 21 days of work over a period of several months. Wal-Mart’s attendance policy provided for termination after nine “unauthorized” occurrences. Time off for workers’ compensation reasons or requested in advance for doctor’s appointments were not counted as occurrences. Employees were required to provide documentation of medical appointments.
The employee, however, failed to follow the stated procedure for requesting time off and failed to provide any medical documentation to support her assertion that the missed time was due, in many instances, to medical appointments. So, unsurprisingly, she was terminated. And, unsurprisingly, she then sued, arguing that Wal-Mart had failed to accommodate her disability in violation of the state law (which, as the federal district court noted, follows the contours of the Americans with Disabilities Act).
The federal district court threw out her claims, finding that the employee was not a “qualified individual” under the law. (A “qualified individual” is one who can perform the essential functions of her job with or without a reasonable accommodation). Noting that, while “attendance is an essential function of any job,” the court emphasized in this case, “[a]ttendance is particularly essential for a People Greeter because that position exists for the purpose of ensuring that customers are personally greeted and offered assistance as they enter and exit a Wal-Mart.” Moreover, the employee was the only greeter at that store; when she wasn’t there, no one else filled the role. Thus, as the court found, “the need for attendance is self-evident in this case.” And the court went on to note that the only accommodation requested by the employee was to excuse her attendance, which was clearly “unreasonable.”
Well, it appears that this employee is one of those folks who stubbornly digs in. She appealed her case to the U.S. Court of Appeals for the First Circuit. And according to a Law360 article (subscription required, sorry), her excuse for why she shouldn’t have been fired is that Wal-Mart does not consider attendance to be an essential function of the job, since it did not fill the role when she failed to show up for work!
Well, it’s an interesting argument, but here’s the flaw – the employee is confusing whether the greeter role is an essential job with what are the essential functions of her job as a greeter. Many jobs, while they are helpful and serve a purpose, are not actually required for the business to function – in other words, they may not be ultimately essential to the fundamental operation of the business. That is a very different issue that what is the essential function of that (perhaps non-essential) job – the reason that the job exists.
So while the role of a greeter may not be essential (and since Wal-Mart has eliminated that role in favor of another role, it pretty clearly is not), the whole reason that the role existed was to, well, greet the customers. In person. And yes, that does actually mean that you have to be present.