Employment Law: The Devil is in the Details

Hilary Weddell

Employment law, perhaps more than other areas of law, is highly fact-specific.  A small change in any of the facts will often alter the analysis and outcome of the case.  In part, this is because employment relationships are complex and there are strong competing interests.  Most laws governing the workplace are intended to protect the employee, especially in California which has some of the most stringent employment laws in the country.  At the same time, the law often recognizes the legitimate business interest of employers must also be taken into account. 

The fact-specific nature of employment discrimination cases is illustrated by the EEOC’s recent suit against Walgreens, which presents the following question:  May an employer be required to permit employee theft as a reasonable accommodation under the Americans with Disability Act (ADA)?  While one would likely assume the answer would be no, the suit illustrates the intensely fact-specific nature of accommodation cases.

The EEOC, on behalf of Josephina Hernandez, sued Walgreens for disability discrimination and failure to accommodate under the ADA and Title VII.  Walgreens terminated Hernandez, a diabetic employee, after she took a bag of potato chips one day at work without first paying in order to stave off a hypoglycemic attack.  The employee claimed that she attempted to pay for the chips after she recovered but there was no one at the register, so she left the bag under the counter and returned to work.  Walgreens management discovered the bag and subsequently terminated Hernandez for violating its strict "anti-grazing" policy although she had worked for the company for 18 years without incident and the company was aware of her condition.  Walgreens claimed it had approximately $350 million in annual losses from employee theft, and a strict policy was necessary to combat this significant problem.  A federal judge in San Francisco recently denied Walgreens’ summary judgment motion because he found the EEOC raised triable questions on whether the employee’s disability was the cause of her prohibited “grazing.”  It will now be up to a jury to decide whether Walgreens should have been required to accommodate the employee’s alleged “stealing” as a reasonable accommodation.

As this case shows, it is difficult to make useful generalizations about what constitutes a reasonable accommodation.  Employers should avoid a “one size fits all” approach, and instead engage in an interactive process looking at the specific limitations of the employee, essential functions of the position, and the business needs of the employer. 

Employment law questions rarely have a quick answer.  Instead, a good employment lawyer will take the time to learn the client’s business and evaluate the specific situation taking employer needs into account. 


Hilary Weddell is an attorney with McManis Faulkner whose practice focus is employment law.  For more information, please visit  

About the author Hilary Weddell

Hilary’s inquisitive mind, strength, and dependability make her an excellent trial lawyer.