SETTLEMENT AGREEMENT BETWEEN THE UNITED STATES OF AMERICA
AND THE KROGER CO.,
UNDER THE AMERICANS WITH DISABILITIES ACT
USAO #2017V03204/DJ #202-57-233

BACKGROUND

  1. The parties to this Settlement Agreement (hereinafter “Agreement”) are the United States of America and The Kroger Co. (hereinafter “Kroger”).
  2. Kroger is a corporation formed and registered to do business in the State of Ohio.  Kroger owns and operates more than 100 grocery stores within what it refers to as its “Columbus Division,” more than 1/3 of which are within the Northern District of Ohio.  This agreement applies to all Kroger grocery stores owned and operated in the counties within the Northern District of Ohio that are listed on Exhibit A, attached hereto.
  3. This matter was initiated based on a complaint filed with the United States alleging violations of title III of the Americans with Disabilities Act of 1990 (“ADA”), as amended, 42 U.S.C. §§ 12181-12189, and its implementing regulation, 28 C.F.R. Part 36.  Specifically, the complaint alleged discrimination on the basis of disability in the full and equal enjoyment of goods, services, facilities, and accommodations; and failure to make reasonable modifications to policy on the basis of disability.  42 U.S.C. §§ 12182(a), (b)(2)(A)(ii); 28 C.F.R. §§ 36.201, 36.205, 36.302.  Based on the complaint, the United States Attorney’s Office for the Northern District of Ohio (“U.S. Attorney’s Office) opened an investigation to determine whether any violations of title III of the ADA occurred.
  4. Kroger has cooperated fully with the U.S. Attorney’s Office investigation, as set forth in this Agreement.

TITLE III COVERAGE AND DETERMINATIONS

  1. The Attorney General is responsible for administering and enforcing title III of the ADA, 42 U.S.C. §§ 12181-18189, and the regulation implementing title III, 28 C.F.R. Part 36.
  2. Kroger grocery stores are places of public accommodation subject to the requirements of title III of the ADA.  42 U.S.C. § 12181(7)(E); 28 C.F.R. § 36.104.  Kroger is a public accommodation subject to title III of the ADA because it is a private entity that owns and operates places of public accommodation.  Id.
  3. Under title III of the ADA, no person who owns, leases (or leases to), or operates a place of public accommodation may discriminate against an individual on the basis of disability in the full and equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations of a place of public accommodation.  42 U.S.C. § 12182(a); 28 C.F.R. § 36.201(a).  Discrimination includes failing to make reasonable modifications in policies, practices, or procedures when necessary to afford its goods, services, facilities, privileges, advantages, or accommodations to an individual with a disability, unless the public accommodation can demonstrate that making the modifications would fundamentally alter the nature of the services.  42 U.S.C. § 12182(b)(2)(A)(ii); 28 C.F.R. § 36.302.
  4. Complainant B.W., a minor at the time of the complaint, was diagnosed with juvenile diabetes (type 1) at the age of eight.  B.W. is an individual with a disability within the meaning of the ADA because diabetes is a physical impairment that substantially limits one or more major life activities, including, but not limited to, the operation of the endocrine system.  42 U.S.C. § 12102; 28 C.F.R. § 36.105.  Diabetes is a chronic, incurable disease that prevents the human body from properly using food to produce energy. 
  5. Ensuring that grocery stores do not discriminate against persons with disabilities is an issue of general public importance.  The U.S. Attorney’s Office is authorized under 42 U.S.C. § 12188 and 28 C.F.R. Part 36, Subpart E, to investigate the allegations of the complaint in this matter to determine Kroger’s compliance with title III of the ADA; to use alternative means of dispute resolution, where appropriate, including settlement negotiations to resolve disputes; and to bring a civil action in federal court in any case that raises issues of general public importance.  42 U.S.C. § 12188(b); 28 C.F.R. §§ 36.502; 36.503; 28 C.F.R. § 36.506.
  6. As a result of its investigation, the United States determined that:
    1. B.W. is a type 1 diabetic and uses a continuous glucose monitor to monitor her glucose levels and an insulin pump to administer insulin.  The insulin pump is worn on the outside of her clothing.
    2. B.W. has served as a Juvenile Diabetes Research Foundation (JDRF) ambassador and has provided training for other teens who are diabetic in her geographic area.
    3. B.W. carries a medical alert bag with her at all times with diabetic supplies inside that include: medication for nausea, glucagon (in case of low blood sugar), a glucose meter with test strips, candy, and juice (also in case of low blood sugar).  This bag is a small backpack and has a medical tag on it indicating B.W. is diabetic.  B.W. also wears a medical alert bracelet to inform others that she is diabetic.
    4. Sometime during 2017, management at the Kroger store in Fostoria, Ohio, posted a sign at their entrance stating: “ALL backpacks And Large bags and totes MUST be checked in At the Front Office.  No exceptions.  Thank you for your Understanding.” (emphasis sic)
    5. Kroger employees were not provided any training about this new policy and whether it had any exceptions for persons with disabilities.
    6. On September 13, 2017, B.W. went to Kroger with her mother, R.W., to purchase diabetic supplies and other items.  B.W. had just left a marching band rehearsal and was concerned that her sugar would drop quickly due to the exercise.
    7. While in the store, B.W. separated from her mother and began to shop.  While shopping, a Kroger employee began to follow her.  The employee then stopped her and told her that it was store policy for all bags to be left at the customer service desk at the front of the store.  B.W. explained that she is diabetic and that the bag is her medical alert bag, needed in case her sugar gets low.  The employee then asked B.W. if the insulin pump she was wearing was attached to the bag.  The employee also told B.W. that there were no exceptions to the “no bag” rule.
    8. B.W. was then escorted to the front of the store by the employee and again told that she needed to check her bag.  B.W. again explained that she needed to keep her bag because it contained diabetic supplies.  A second Kroger employee at the desk told her she would need to check the bag “no exceptions.”  B.W. attempted to reach her mother on her cell phone, but was not able to.
    9. B.W.’s mother, R.W., came to the front of the store with her cart to pay for her purchases and saw B.W. at the front customer service desk.  R.W. then left her cart, without completing her purchases, and went over to her daughter to see what was going on.  B.W. began to cry.  R.W. questioned Kroger employees as to why her daughter could not continue to shop with her medical bag and was told that it was “store policy, no exceptions.”
    10. B.W. and R.W. left Kroger without making any purchases.  B.W. felt humiliated that she was questioned at the front of the store and not allowed to shop with her medical bag.  R.W. felt humiliated for her daughter, frustrated and angry at Kroger employees for not allowing her daughter to shop with her medical bag, and upset that she had to leave the store without making her purchases.
    11. R.W. filed a complaint with the Kroger corporate office, but did not receive a response.  She then contacted the Kroger store and spoke with a manager who informed her again that it was store policy to check bags at the customer service desk while shopping.
    12. In response to the Complaint, Kroger denies it engaged in any discriminatory conduct with respect to Complainant and maintains that the intent of the ban on large bags in the Fostoria, Ohio, Kroger grocery store was related entirely to the neutral and non-discriminatory deterrence of theft in only that store location, which was on the rise at the time B.W. was a customer. 
  7. On the basis of its investigation, the United States has determined that Kroger discriminated against B.W. and R.W. by denying them, on the basis of B.W.’s disability, the opportunity to participate in or benefit from the goods, services, facilities, privileges, advantages or accommodations of Kroger, in violation of 42 U.S.C. § 12182 and 28 C.F.R. §§ 36.201, 36.205.
  8. B.W. and R.W. are aggrieved persons pursuant to 42 U.S.C. § 12188(b)(2)(B).
  9. In consideration of the terms of this Agreement, the United States agrees to refrain from filing a civil suit in this matter under the ADA based on the allegations raised in USAO #2017V03204/DJ #202-57-233, except as provided in the Enforcement section of this Agreement.
  10. In a spirit of cooperation toward ensuring full compliance with Title III of the Americans with Disabilities Act and in consideration of the United States’ agreement to refrain from possible litigation, Kroger agrees to take the actions specified in this Agreement at all of its stores in the Northern District of Ohio.  This Agreement is neither an admission of liability by Kroger nor a concession by the United States that its claims are not well founded.  By entering into this Agreement, Kroger does not admit the allegations alleged above, or to any violation of law, liability, fault, misconduct, or wrongdoing in connection with those allegations.  The Parties have determined that the complaint filed with the United States can be resolved without litigation and have agreed to the terms of this Agreement.

EQUITABLE RELIEF

  1. Prohibition of Discrimination
    1. Nondiscrimination.  Pursuant to 42 U.S.C. § 12182(a), Kroger agrees that persons with disabilities shall be afforded the opportunity to participate in or benefit from the goods, services, facilities, privileges, advantages, or accommodations equal to that afforded other individuals as required by the ADA.
    2.  Discrimination by Association.  Kroger shall not deny its services, accommodations, or other opportunities to any individual because of the known relationship of that person with a person with a disability.  See 42 U.S.C. § 12182(b)(1)(E). 
    3.  Retaliation and Coercion.  Kroger shall not retaliate against or coerce in any way any person who made, or is making, a complaint according to the provisions of this Agreement or exercised, or is exercising, his or her rights under this Agreement or the ADA.  See 42 U.S.C. § 12203.
  2. Policy Revisions
    1. Reasonable Modifications.  Kroger agrees that persons with disabilities should be provided reasonable modifications in policies, practices, or procedures when necessary to afford its goods, services, facilities, privileges, advantages, or accommodations to an individual with a disability, unless making the modifications would fundamentally alter the nature of the services.
    2. Complaint Resolution.  Within sixty (60) days of the effective date of this agreement, Kroger shall submit to the United States for review and approval a description of its complaint resolution process for complaints coming in via Kroger’s customer service line and a script for members of the customer service team, providing instructions on how to process phone calls regarding ADA complaints.  Kroger will maintain records of all complaints regarding allegations of discrimination on the basis of disability made to Kroger via its customer service line and/or its online complaint portal found at https://www.kroger.com/hc/help/contact-us/customer-comments,  and actions taken with respect thereto.  Kroger will notify the public of its complaint resolution mechanism by providing information on its website including to whom complaints should be made and explaining the right to receive a written response to the complaint.  Kroger will ensure that its website conforms to, at a minimum, the Web Content Accessibility Guidelines 2.0 Level A and AA Success Criteria.  Copies of complaints received pursuant to this paragraph, information gathered in the course of the investigation, and the responses thereto will be maintained by Kroger for the entire duration of this Agreement.
    3. Employee Policy Statement.  Within sixty (60) days of the effective date of this agreement, Kroger shall submit to the United States for review and approval a policy  statement that prohibits discrimination based on disability, emphasizes reasonable modification of policies that may discriminate, and summarizes the complaint resolution mechanism referenced in paragraph 19 of this Agreement.  Within thirty (30) days of creating this Employee Policy Statement, Kroger shall publicize the statement by distributing it to all employees at Kroger stores listed on Exhibit A to this agreement.
    4. ADA Administrator.  Within sixty (60) days of the effective date of this agreement, Kroger will identify an employee to act as ADA Administrator in the Columbus Division to oversee ADA Compliance in the stores within the Columbus Division listed on Exhibit A of this agreement.  This person will be responsible for assisting and/or coordinating the response to all complaints regarding alleged ADA violations, responding to employee questions regarding the ADA, and training employees about the ADA, the complaint resolution mechanism described in paragraph 19 of this Agreement, and the terms of this agreement.  Kroger will provide the contact information of the designated ADA Administrator to all employees in the Columbus Division store locations listed on Exhibit A and ensure that they know when and how to contact the ADA Administrator.
  3. Notice to the Public
    1. Policy Statement.  Within 60 days of the entry of this Agreement, Kroger shall develop and submit to the United States for review and approval a written policy statement that includes at a minimum the sample language provided here at Exhibit B.  Once approved, Kroger shall post the statement in a prominent location of its public areas in all stores located in the Northern District of Ohio and listed on Exhibit A of this agreement.
  4. Training
    1. Training of ADA Administrator.  Within sixty (60) days of execution of this Agreement, and annually thereafter during the term of this Agreement, Kroger agrees to affirm its ADA Administrator has been trained on the following: general nondiscrimination requirements of title III of the ADA; reasonable modification of policies; and public accommodations’ obligations under title III of the ADA.
    2. Training of Kroger Employees.  Kroger will provide mandatory training to all Kroger Employees in the stores within the Columbus Division listed on Exhibit A within one hundred and twenty (120) days of the effective date of this Agreement to ensure that all persons with disabilities are treated in a nondiscriminatory manner and are afforded the same service and courtesy as that afforded any customer of the store, including reasonable modification to store policies, practices, and procedures when necessary.  This training may be provided via regular store stand-up meetings with employees and documented.  New employees must be trained within sixty (60) days of their hire.  A screening of a video of the original training will suffice to meet this obligation.
    3. Training Attendance Sheets.  Kroger will create and maintain training attendance logs for the duration of this Agreement, confirming the training conducted pursuant to Paragraphs 23-24 of this Agreement, including the names and respective job titles of the attendees, and date, time, and location of the training. 
  5. Reporting
    1. Compliance Reports.  Beginning 90 days after the effective date of this Agreement, and every six (6) months thereafter for the entire duration of the Agreement, Kroger will provide a written report (“Compliance Report”) to the U.S. Attorney’s Office regarding the status of its compliance with this Agreement.  The Compliance Report will outline data relevant to the Agreement, including but not limited to:
      1. The number of “Complaints” received by Kroger through its customer service line and/or online portal related to the stores listed on Exhibit A from persons with disabilities alleging violations of the ADA and the investigation and resolution of such Complaints including any supporting documents; and
      2. Documentation of stand up talks in which the required ADA training was provided, including the date and time, who gave the talk, the duration, and subject of the talk.

      Kroger will maintain records to document the information contained in the Compliance Reports and will make them available, upon request, to the U.S. Attorney’s Office. 

    2. Complaints.  During the term of this Agreement, Kroger will notify the U.S. Attorney’s Office if any person files a lawsuit, complaint, or formal charge with any state or federal agency within the Northern District of Ohio, alleging that Kroger violated the ADA.  Such notification must be provided in writing via certified mail within 28 days of the date Kroger received notice of the allegation and will include, at a minimum, the nature of the allegation, the name of the person making the allegation, and any documentation possessed by Kroger relevant to the allegation.  Kroger will reference this provision of the Agreement in the notification to the U.S. Attorney’s Office.
  6. Other Provisions
    1. Enforcement.  The United States may review Kroger’s compliance with this Agreement or title III of the ADA at any time.  If the United States believes that this Settlement Agreement or any portion of it, or Title III of the ADA, has been violated, it will raise its concern(s) in writing with Kroger, discuss those concerns with Kroger, and the parties will then attempt to resolve the concern(s) in good faith.  If a resolution is not achieved, the United States will provide Kroger with written notice of any breach and allow Kroger thirty (30) days to cure said breach, prior to instituting any court action to enforce the ADA and the terms of the Settlement Agreement.  If the United States believes that title III of the ADA, this Agreement, or any portion of it has been violated, it may institute a civil action in the appropriate U.S. District Court to enforce this Agreement and/or title III of the ADA.
    2.  Severability.  If any term of this Agreement is determined by any court to be unenforceable, the other terms of this Agreement shall nonetheless remain in full force and effect, provided, however, that if the severance of any such provision materially alters the rights or obligations of the parties, the United States and Kroger shall engage in good faith negotiations in order to adopt mutually agreeable amendments to this Agreement as may be necessary to restore the parties as closely as possible to the initially agreed upon relative rights and obligations.
    3. Entire Agreement.  This Agreement, including Exhibit A, constitutes the entire agreement between the United States and Kroger on the matters raised herein, and no prior or contemporaneous statement, promise, or agreement, either written or oral, made by any party or agents of any party, that is not contained in this written agreement, including any exhibits, is enforceable.  This Agreement can only be modified by mutual written agreement of the parties.
    4. Binding.  This Agreement is binding on Kroger, including all principals, agents, executors, administrators, representatives, employees, successors in interest, beneficiaries, and assignees.  In the event that Kroger seeks to sell, transfer, or assign all or part of its interest during the term of this Agreement, as a condition of sale, transfer or assignment, Kroger will obtain the written agreement of the successor, buyer, transferee, or assignee as to all obligations remaining under this Agreement for the remaining term of this Agreement.  This Agreement shall not apply to any new corporation formed through a merger between Kroger and another legal entity.  However, even after such merger, if any, the obligations contained in this Agreement shall continue to apply to any currently existing Kroger store for the duration of this Agreement, including the Kroger stores listed in Exhibit A.  The U.S. Attorney’s Office will be notified of any merger and provided with an updated Exhibit A, if applicable, and updated contact information in light of the merger. 
    5. Non-Waiver.  Failure by the United States to enforce any provision of this Agreement is not a waiver of its right to enforce that or any other provisions of this Agreement.
    6. Signatory.  The signatory for Kroger represents that he or she is authorized to bind Kroger to this Agreement.
    7. Retaliation.  Kroger shall not discriminate or retaliate against any person because of his or her participation in this matter.
  7. Effective Date/Termination Date
    1. Effective Date.  The effective date of this Agreement is the date of the last signature below.
    2. Duration.  The duration of this Agreement will be two (2) years from the effective date of this Agreement.

For the United States of America:

BRIDGET M. BRENNAN
Acting United States Attorney

/s/
ANGELITA CRUZ BRIDGES
Assistant United States Attorney
Northern District of Ohio
Four Seagate, Suite 308
Toledo, OH 43604-2624
Voice: 419-259-6376
Fax: 419- 259-6360
Angelita.Bridges@usdoj.gov

Executed this 19th day of March, 2021

For The Kroger Co.

/s/
NATHAN BROWN
Counsel for The Kroger Co.

Executed this 8th day of April, 2021

Exhibit A

Below is a listing of all Kroger grocery stores owned and operated in counties within the Northern District of Ohio, to which the Agreement applies.  However, only the Columbus Division stores (as designated below) will be required to complete the mandatory training described in Section D and be subject to the oversight of the ADA Administrator provided for in Paragraph 21of the Agreement.

Exhibit B

The Kroger Company and its employees are committed to providing equal access to its customers and do not discriminate against individuals on the basis of disability in the full and equal enjoyment of Kroger’s goods, services, facilities, privileges, advantages, or accommodations.  The Kroger Company will make reasonable modifications of policies and procedures for individuals with disabilities, as necessary, unless Kroger can demonstrate that such modifications would fundamentally alter the nature of Kroger’s goods, services, facilities, privileges, advantages or accommodations.

The Americans with Disabilities Act (ADA) prohibits discrimination against people with disabilities.  To file a complaint about discrimination on the basis of disability, Kroger customers may call ________ or access Kroger’s online complaint portal at https://www.kroger.com/hc/ help/contact-us/customer-comments.  For more information about the ADA, call the Department of Justice’s toll-free ADA information line at 1-800-514-0301 (voice), 1-800-514-0383 (TTY), or visit the ADA Home Page at https://www.ada.gov/.