Boxer & Gerson in the News

$200,000 judgment upheld against Albertsons for denying cashier’s bathroom break

SAN FRANCISCO, CA – A state appellate court has upheld a $200,000 judgment for a 51-year-old grocery store clerk who successfully sued the Albertsons grocery chain for failing to provide reasonable accommodation for her disability after her cancer treatments.

A three-judge panel of the First Appellate District Court upheld a $200,000 judgment against the grocery store chain after it failed to accommodate the employee who needed frequent bathroom breaks because of cancer treatments.

The employee, who was represented by the Oakland law firm of Boxer & Gerson LLP and identified as “A.M.” in the ruling, was diagnosed with cancer of the tonsils and larynx in January 2003 and took medical leave for radiation and chemotherapy treatment. As a result of the treatments and their effect on her saliva glands, she suffered a chronic dry mouth and needed to drink large amounts of water, which resulted in the need to urinate frequently. For a year, the Albertsons store in Fairfax informally accommodated A.M. at work by allowing her to have drinks at the checkout stand and take bathroom breaks when needed.

During an incident in February 2005, the woman was forced to wait for a bathroom break while the store supervisor helped unload a delivery truck. She requested a break several times, but her supervisor refused to relieve her for a bathroom break. With a long line of customers and no one to watch the cash register, A.M. then lost control of her bladder. When her supervisor returned, A.M. was very upset and went home.

The incident caused A.M. to become withdrawn, listless and haunted by bad dreams. She also contemplated suicide.

A lawsuit was filed in 2006 in Marin Superior Court alleging that Albertsons had violated the woman’s rights under the state Fair Employment and Housing Act (FEHA) by failing to provide reasonable accommodation of her disability. A Marin jury ruled in her favor and awarded her $200,000. Albertsons appealed to the 1st District Court.

The First District Appellate Court ruling underscored the need for employers to consistently adhere to the FEHA. Justice Timothy Reardon wrote, “As is demonstrated by A.M.’s case, a single failure to make reasonable accommodation can have tragic consequences for an employee who is not accommodated. When construing a statute, we seek to interpret it in a manner that promotes wise policy, not absurdity.”

Boxer & Gerson attorney Leslie Levy, who represented the employee, said the ruling should send a message to employers. “It’s not good enough for employers to promise accommodations,” she said. “It’s important and required for employers to deliver on those accommodations.”

A three-judge panel released its ruling against Albertsons on Oct. 15. The ruling can be viewed athttp://appellatecases.courtinfo.ca.gov/search/case/mainCaseScreen.cfm?dist=1&doc_id=1374440&doc_no=A122307