SETTLEMENT AGREEMENT BETWEEN
THE UNITED STATES OF AMERICA
WAL-MART STORES, INC.
1.This Settlement Agreement (Agreement) is made and entered into between the United States of America (United States) and Wal-Mart Stores, Inc. (Wal-Mart). This Agreement resolves an investigation of Wal-Mart conducted by the United States Department of Justice (United States) under title III of the Americans with Disabilities Act of 1990 (ADA), 42 U.S.C. §§ 12181, et seq. The United States initiated this investigation after it received several complaints alleging that Wal-Mart discriminated against people with disabilities by failing to make reasonable modifications to rules, policies, and procedures at Wal-Mart stores nationwide. In particular, several complainants alleged that Wal-Mart denied equal access to its stores for people with disabilities who use service animals; at least five complainants alleged a failure to provide disability-related assistance, two complainants alleged that Wal-Mart denied equal access by failing to make reasonable modifications in order to accept payment by people with disabilities at different stores; and one complainant alleged that a Wal-Mart auto service department denied him equal access to its services because he was deaf and did not have a cellular telephone. The United States' investigation was conducted under the authority granted by title III of the ADA, 42 U.S.C. § 12188(b)(1) (A)(i); 28 C.F.R. § 36.502.
2.Title III of the ADA and its implementing regulations prohibit discrimination on the basis of disability by places of public accommodation. 42 U.S.C. § 12182; 28 C.F.R. § 36.201. Specifically, title III requires places of public accommodation to make reasonable modifications to policies, practices, or procedures to afford access to persons with disabilities, including those who use service animals, that is equal to the access afforded to individuals without disabilities. 42 U.S.C. § 12182(b)(2)(A)(ii); 28 C.F.R. § 36.302(a).
3.The Attorney General of the United States (Attorney General) is authorized to enforce title III of the ADA by seeking damages and full compliance with title III's provisions, including requiring the owners and operators of a place of public accommodation to make reasonable modifications to policies, practices, and procedures, 28 C.F.R. § 36.504(a). The Attorney General may commence a civil action to enforce title III in any situation where the Attorney General has reasonable cause to believe that a pattern or practice of discrimination exists or a matter of general public importance is raised. 42 U.S.C. § 12188(a)(2); 42 U.S.C. § 12188(b)(1)(B).
4. The Parties to this Agreement are the United States and Wal-Mart.
5. Wal-Mart owns and operates sales establishments throughout the nation and is, therefore, a public accommodation as defined in section 301(7)(E) of the ADA, 42 U.S.C. § 12181(7)(E), and its implementing regulation, 28 C.F.R. § 36.104.
6. The United States has determined that the complainants are individuals with disabilities, as defined by the ADA and its implementing regulation, 42 U.S.C. § 12102(2); 28 C.F.R. § 36.104.
7. The term "Wal-Mart Stores" as used herein will mean: all Wal-Mart stores, including but not limited to Division 1 stores, Supercenters, Sam's Clubs, Neighborhood Markets, and other facilities located in the United States where Wal-Mart sells any good or service to members of the public.
8. The term "Wal-Mart associates" as used herein will mean individuals employed by Wal-Mart.
9. Prior to the United States' investigation, Wal-Mart had taken certain steps to comply with title III of the ADA, including the adoption of a policy of posting signs at the front of Wal-Mart Stores that say "Service Animals Permitted" and including information on the ADA in a computer module training program used to train certain new associates.
10.In consideration of the terms of this Agreement, the United States agrees to refrain from undertaking further investigation or filing a civil suit in this matter regarding the areas covered under the Remedial Action section of this Agreement, except as provided in the Enforcement Section of the Agreement.
11.None of the agreements, statements, or actions reflected herein shall be deemed an admission of wrongdoing or liability by Wal-Mart. The agreements, statements, and actions are made in order to compromise and settle certain complaints against Wal-Mart received by the United States and shall not be used for any other purpose, except as herein stated. Wal-Mart expressly asserts that, as described in paragraph 9 above, it already has policies and training in place regarding the service animal requirements of the ADA and seeks to enhance its policies and practices in the manner set forth below. The United States contends that steps taken by Wal-Mart were inadequate to achieve ADA compliance.
12.Consistent with the ADA, Wal-Mart will not discriminate against any individual on the basis of disability in the full and equal enjoyment of any of its goods, services, facilities, privileges, advantages, or accommodations. Specifically, as provided by the ADA, Wal-Mart also will not refuse to make reasonable modifications to policies, practices, and procedures to afford equal access to its goods, services, facilities, privileges, advantages, or accommodations of Wal-Mart Stores by persons with disabilities, including but not limited to persons who use service animals.
Service Animal Policy
13.Within thirty (30) days of the effective date of this Agreement, to ensure equal access for persons with disabilities who use service animals to all facilities owned, operated, leased to, or leased by Wal-Mart in the United States, Wal-Mart will adopt the Service Animal Policy (Policy) attached hereto and incorporated by reference herein as Attachment A to this Agreement. Wal-Mart may revise the Policy during the term of this Agreement after prior written approval of the United States, which approval shall not be unreasonably withheld or delayed. Reasonable grounds for Wal-Mart to revise the Policy include changing the Policy to conform to changes to the ADA statutory language or changes to the title III regulations.
14.Within sixty (60) days of the effective date of this Agreement, Wal-Mart will begin distributing the Policy attached as Attachment A to all People Greeters, Store Managers, and Assistant Store Managers through a Computer-Based Learning ("CBL") module with distribution to be completed within one hundred twenty (120) days of the effective date of this Agreement. Thereafter, Wal-Mart will require all new People Greeters, Store Managers, and Assistant Store Managers not previously trained on the Policy to access the CBL module within ten (10) days of the date on which they assume their new positions. Further, within sixty (60) days of the effective date of this Agreement, Wal- Mart will post a copy of this Policy on its website in a location that is easy for customers with disabilities to find, in a format accessible to persons with disabilities (i.e., HTML format), and in all Wal-Mart Stores in a conspicuous location where associates can readily read the Policy, such as the employee lounge. The posted Policy shall be printed in a bold font no smaller than 16 points on a contrasting background and shall include an image designed by Wal-Mart of a person with a disability who uses a service dog. The heading on the posted Policy ("WAL-MART STORES, INC., POLICY REGARDING SERVICE ANIMALS FOR PEOPLE WITH DISABILITIES") shall be printed in capital letters in a bold font no smaller than 20 points. Physical copies of the posted Policy will be refreshed, as needed, for the life of this Agreement. Within one hundred and twenty (120) days of the effective date of this Agreement, Wal-Mart will provide the United States with proof of the issuance, communication to associates, and posting of the Policy in all Wal-Mart Stores.
15.For the life of this Agreement, on an annual basis, Wal-Mart will provide pre-shift instruction regarding the Policy to all Wal-Mart associates who have contact with the public. Such instruction shall provide an overview of the Policy and associates' responsibilities thereunder, and shall tell associates where the Policy is posted so they may read it. Individual copies of the Policy shall be made available upon request. Wal-Mart will provide the United States with proof that such training occurred.
16.Within one hundred twenty (120) days of the effective date of this Agreement, and on an annual basis for the life of this Agreement, Wal-Mart will provide educational training concerning the substantive provisions of the ADA through the CBL module discussed in Paragraph 14 to all People Greeters, Store Managers, and Assistant Store Managers. This training, which, for People Greeters and Assistant Store Managers is expected to be no more than twelve (12) minutes in duration, and which will be developed in consultation with the United States shall include the following:
a. Information on each individual's duties and obligations under title III of the ADA generally and with respect to the obligations to make reasonable modifications to policies, practices, and procedures and to maintain accessible features;
b. Instruction on Wal-Mart's policy related to the ADA and service animals;
c. Instruction on procedures to ensure that customers with disabilities accompanied by service animals have access to Wal-Mart Stores that is equal to the access afforded to customers without disabilities;
d. A question and answer session to review each of the foregoing areas; and
e.Certification of attendance by the person conducting the educational program for each person attending the program. Wal-Mart will send the United States copies of all such certifications of attendance within thirty (30) days of each training;
f. The review by the United States of the CBL module for Store Managers shall be with regard to the title III components only, not the title I components.
17.Within one hundred twenty (120) days of the effective date of this Agreement, Wal-Mart will post in a conspicuous location in the public entryways of all Wal-Mart Stores a sign prominently stating "Service Animals Welcome – Report Problems to 1-800-963-8442." Signage will be printed in a bold font no smaller than 20 points in size on a contrasting background. This signage will be refreshed, as needed, for the life of this Agreement. Wal-Mart further acknowledges that, while it is not a requirement of this Agreement, it is current Wal-Mart policy to post in each store a sign with the Store Manager's name, telephone number, and photograph.
18.Wal-Mart's Ethics Office will be responsible for receiving and investigating all ADA title III-related complaints by customers received at 1-800-963-8442 or otherwise directed to the corporate office. Within sixty (60) days of the effective date of this Agreement, Wal- Mart will post on its Internet website (within the domain http://www.walmart.com) the contact information for the Ethics Office in a website location that is easy for customers with disabilities to find and in a format accessible to persons with disabilities (i.e., HTML format). For purposes of this Agreement, a complaint alleging any problem related to a customer's or potential customer's service animal will be treated as an ADA title III-- related complaint. Within thirty (30) days of the effective date of this Agreement, Wal- Mart will train the responsible Ethics Office associates so that they are knowledgeable regarding the requirements of title III applicable to Wal-Mart, including effective communication and reasonable modification requirements, and the terms of this Agreement.
19.For the life of this Agreement, Wal-Mart will handle any ADA title III-related complaints by a customer directed to 1-800-963-8442 or otherwise directed to its corporate office as follows: (A) within five (5) business days after an ADA title III-related complaint is received, the Ethics Office, or its designee, will commence an investigation, including contacting the complainant, if necessary, to find out the allegations of the complaint and will investigate the complaint with the appropriate Wal-Mart staff where the complaint originated; and (B) the Ethics Office, or its designee, will complete its investigation and respond to the complainant within 45 business days after the complaint is received, including discussing with the complainant, where appropriate, possible resolutions, including training or corrective actions for Wal-Mart staff and relief for the complainant. Wal-Mart will maintain written records of ADA title III-related complaints by customers, its investigations, and its responses to those complaints throughout the life of this Agreement. Copies of such records will be provided to the United States every six (6) months for the life of this Agreement beginning six (6) months after the effective date of this Agreement, and at any other time upon request.
20.The parties agree not to use documentation created pursuant to Paragraph 19 above as evidence in any litigation between the United States and Wal-Mart under the ADA except for litigation to enforce compliance with the Grievance Procedures set out in this Agreement.
21.Wal-Mart agrees to take appropriate action with respect to any Wal-Mart associates who engage in conduct that denies or interferes with the rights under title III of the ADA of a customer or potential customer with a disability who uses a service animal. This action, which may include disciplinary action, will be consistent with the action Wal-Mart would take against an employee who committed a comparable violation of any policy adopted by Wal-Mart to comply with federal, state, or local law.
Advertising in Furtherance of the Public Interest
22.In furtherance of the public interest, Wal-Mart will fund a public service announcement campaign (PSA Campaign) to increase public knowledge about the access rights of persons with disabilities who use service animals. Specifically, within forty-five (45) days of the effective date of this Agreement, Wal-Mart will pay the total sum of One Hundred Thousand Dollars ($100,000) into an interest-bearing escrow account, which account will be used by the United States for purposes of the PSA Campaign. The United States will determine, in its sole discretion, the content and nature of the PSA Campaign, except that the PSA Campaign will neither picture nor refer directly or indirectly to Wal- Mart or any other particular retailer, nor will it in any way reference this Agreement or the facts giving rise to this Agreement. The PSA Campaign may feature a person using a service animal in a retail setting so long as the name, logo, or other distinguishing characteristics (e.g., uniform or dress) associated with a particular retailer are not featured. Funds in the escrow account will be disbursed in accordance with instructions provided by the United States.
Monetary Relief for Complainants
23.The ADA authorizes the Attorney General to seek a court award of compensatory damages on behalf of individuals aggrieved as the result of violations of title III of the ADA. 42 U.S.C. § 12188(b)(2)(B); 28 C.F.R. § 36.504(a)(2). Within thirty (30) days of the effective date of this Agreement, Wal-Mart will pay the total sum of One Hundred Fifty Thousand Dollars ($150,000) into an interest-bearing escrow account to establish a fund to compensate the individuals alleging discrimination on the basis of disability whose complaints are covered under this Agreement.
24.No later than sixty (60) days after the effective date of this Agreement, the United States will determine, in its sole discretion, which persons qualify for compensation and the amount of such compensation. The United States will notify Wal-Mart, in writing, of this determination. The United States will, at the time it notifies Wal-Mart of its determination, provide Wal-Mart with a brief statement summarizing why each person identified is aggrieved. Wal-Mart will write checks (in a total amount not to exceed $150,000 plus any interest accrued thereon) payable to the order of each such person in the amounts designated by the United States and will forward such checks to counsel for the United States within ten (10) days of any such designation.
25.The United States will not distribute any check issued by Wal-Mart pursuant to Paragraph 24 to an aggrieved person before such person has executed a written release of all claims, legal or equitable, that he or she might have against Wal-Mart relating to the claims asserted in this matter. This release shall be in the form set forth at Attachment B to this Agreement. Counsel for the United States will send a copy of each original signed release to counsel for Wal-Mart via common carrier Federal Express before distribution of a check to the corresponding complainant. If the United States has not distributed all of the money in the compensation fund to designated persons within one hundred twenty (120) days after the effective date of this Agreement, any money remaining in the fund shall revert to Wal-Mart for use in implementing the provisions of this Agreement.
26.If at any time Wal-Mart desires to modify any portion of this Agreement because of changed conditions making performance impossible or impractical or for any other reason, it will promptly notify the United States in writing, setting forth the facts and circumstances thought to justify modification and the substance of the proposed modification. Until there is written Agreement by the United States to the proposed modification, the proposed modification will not take effect. These actions must receive the prior written approval of the United States, which approval shall not be unreasonably withheld or delayed.
27.The United States may review compliance with this Agreement at any time, including but not limited to testing at any Wal-Mart Stores. If the United States believes that Wal-Mart has failed to comply in a timely manner with any requirement of this Agreement without obtaining sufficient advance written agreement with the United States for a modification of the relevant terms, the United States will so notify Wal-Mart in writing, and it will attempt to resolve the issue or issues in good faith. If the United States is unable to reach a satisfactory resolution of the issue or issues raised within thirty (30) days of the date it provides notice to Wal-Mart, it may institute a civil action in federal court to enforce the terms of this Agreement or title III and may, in such action, seek any relief available under law.
28.For purposes of the immediately preceding paragraph, it is a violation of this Agreement for Wal-Mart to fail to comply in a timely manner with any of its requirements without obtaining sufficient advance written agreement with the United States for an extension of the relevant time frame imposed by the Agreement.
29.Failure by the United States to enforce this entire Agreement or any provision thereof with regard to any deadline or any other provision herein will not be construed as a waiver of the United States' right to enforce other deadlines and provisions of this Agreement.
30. A copy of this document will be made available to any person by Wal-Mart or the United States on request. A copy of the Policy attached as Attachment A will also be made available to any person by Wal-Mart or the United States on request.
31.This Agreement shall be binding on the United States and on Wal-Mart and its agents, employees, associates, and contractors. In the event Wal-Mart seeks to transfer or assign all or part of its interest in any Wal-Mart facility covered by this Agreement, and the successor or assignee intends on carrying on the same or similar use of the facility, as a condition of sale, Wal-Mart shall obtain the written accession of the successor or assignee to any obligation remaining under this Agreement for the remaining term of this Agreement.
32.This Agreement, including Attachment A and Attachment B, constitutes the entire agreement between the parties on the matters raised herein, and no other statement, promise, or agreement, either written or oral, made by either party or agents of either party, that is not contained in this written Agreement, will be enforceable. This Agreement (and procedures set forth therein) shall resolve all complaints under title III of the ADA alleging Wal-Mart's failure to make reasonable modifications for persons with disabilities received by the Disability Rights Section as of one month prior to the effective date of the Agreement, excluding any such issues in those matters noted in footnote one.1
33. This Agreement will remain in effect for three (3) years.
34. The person signing this Agreement for Wal-Mart represents that he or she is authorized to bind Wal-Mart to this Agreement.
35. The effective date of this Agreement is the date of the last signature below. The Agreement may be executed in counterparts.
1 Complaints filed with the Department under title III of the ADA, which do not implicate the obligation to make reasonable modifications to policies, practices, and procedures to avoid discrimination on the basis of disability, including complaints regarding parking, the failure to maintain accessible features, physical barriers to access, effective communication, and allegations of discrimination on the basis of disability in the full and equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations of Wal-Mart Stores. On January 14, 2009, the Department provided Wal-Mart with a list of the title III complaints received by the Department more than 30 days preceding the effective date of this Agreement that are not resolved by this Agreement. This Agreement also does not cover or resolve any complaint under title III of the ADA received by the Disability Rights Section in the 30 days preceding the effective date of this Agreement. This Agreement also does not cover or resolve any complaint under title III of the ADA received by the Disability Rights Section on or after the effective date of this Agreement. For purposes of this Agreement, a complaint shall not be considered to be received by the Disability Rights Section unless it is physically present in that Section's office, even if the complaint has been received by another office within the Department at an earlier time. The parties will endeavor in good faith to resolve the aforementioned complaints through cooperative means. If the United States determines that the parties are unable to resolve any of the aforementioned complaints without litigation, the parties agree that this Agreement shall not be construed to limit the United States' authority under title III of the ADA to conduct investigations and file suit in federal court to obtain any relief authorized by law, notwithstanding the nature or subject matter of the allegations of such complaints. Provided, however, that neither this Agreement nor complaints covered by this Agreement may be used by the Department in any such litigation; except to the extent that Wal- Mart places in evidence as a defense steps taken pursuant to this Agreement, the Department may introduce the Agreement as rebuttal evidence, with a stipulation that the Agreement was entered without an admission of liability.
FOR WAL-MART STORES, INC:
FOR THE UNITED STATES:
GRACE CHUNG BECKER
|Date: 01/16/2009||Date: 01/16/2009|
WAL-MART STORES, INC.,
POLICY REGARDING SERVICE ANIMALS
FOR PEOPLE WITH DISABILITIES
Wal-Mart Stores, Inc., is committed to making reasonable modifications to its policies, practices, and procedures to permit the use of service animals by its customers with disabilities. Service animals play an important role in ensuring the independence of people with disabilities, and it is therefore our policy to welcome into our stores any animal that is individually trained to assist a person with a disability.
What is a Service Animal?
Service animals are individually trained to work or perform tasks for individuals with disabilities. Service animals are not always dogs; other animals may assist people with disabilities. Service animals come in all breeds and sizes, may be trained either by an organization or by an individual with a disability, and need not be certified or licensed. Service animals do not always have a harness, a sign, or a symbol indicating that they are service animals. A service animal is not a pet. Service animals assist people with disabilities in many different ways, such as:
People Greeter Responsibilities:
Wal-Mart welcomes customers with service animals. People Greeters are the Wal-Mart associates responsible for determining if an animal is a service animal. Most of the time, people with disabilities who use service animals may be easily identified without any need for questioning. If you can tell by looking, you should not make the customer feel unwelcome by asking questions. If you are unsure whether an animal meets the definition of a service animal, one People Greeter and, where necessary, a member of Store Management may ask the customer only one question:
If the customer says yes or otherwise explains that the animal is required because of a disability, you should welcome the person and service animal into the store. Do not ask any further questions about the customer or his or her service animal. You may not ask a customer questions about his or her disability. You may not ask a customer to show a license, certification, or a special ID card as proof of their animal's training. You must permit service animals to accompany customers with disabilities to all areas of our stores normally used by other customers.
All Associates' Responsibilities Regarding Service Animals:
Once a customer with a service animal has passed the People Greeters and entered the store, no associates may ask the customer any further questions about his or her service animal. You must permit service animals to accompany customers with disabilities to all areas of the store normally used by customers. This includes areas of the store that contain food. Treat customers with service animals with the same courtesy and respect that Wal-Mart affords to all of our customers. Service animals are not pets. Do not interfere with the important work performed by a service animal by talking to, petting, or otherwise initiating contact with a service animal. If you have a concern about an animal in a store, contact a manager or assistant manager. Only a manager (or, in the absence of a manager, an assistant manager) can make the decision to exclude a service animal, except in the unusual circumstance where a service animal's behavior requires immediate action to prevent imminent injury to others and there is not enough time to contact a manager.
In the event that a particular service animal's vicious behavior poses a direct threat to the health or safety of others, the service animal is acting out of control and the owner does not take action to correct its behavior, or in the unlikely event that Wal-Mart can demonstrate that a particular service animal's conduct fundamentally alters the nature of the store's business, Wal-Mart has the right to exclude the animal from a store at that time. Barking alone is not a direct threat. In addition, a direct threat does not exist if the service animal's owner takes prompt, effective action to control the animal. Moreover, Wal-Mart will not exclude a particular service animal based on past experience with other animals or based on fear that is not related to a service animal's actual behavior. Each situation will be considered individually. In the event Wal-Mart excludes a service animal, it may not refuse service to the individual with a disability when he or she is not accompanied by that particular service animal.
In a store where a People Greeter is not present, a manager or assistant manager may ask the People Greeter question identified above.
Customers can make complaints about the improper treatment of customers with service animals by calling 1-800-963-8442. People with disabilities have the right to be accompanied by service animals in Wal-Mart stores under the Americans with Disabilities Act, and Wal-Mart considers interference with or denial of this right to be a serious violation of Company policy. Wal-Mart will promptly investigate all complaints raising this issue and will take appropriate disciplinary action when associates fail to comply with this Policy.
WAIVER AND RELEASE OF CLAIMS
I, _________________________, hereby agree that in consideration of the terms set forth in the Settlement Agreement between the United States of America and Wal-Mart Stores, Inc., I hereby release Wal-Mart Stores, Inc., and all of its agents, associates, and employees, as well as any affiliated entities, successors and assigns, without limitation from any and all legal claims arising from or related to the facts and circumstances described in the Settlement Agreement resolving Department of Justice complaint number ____________ under title III of the Americans with Disabilities Act. This includes, but is not limited to, all claims for monetary or equitable relief that I may have under federal, state, or local law. I have been advised that, before signing this release, I have the right to consult a private attorney regarding its contents. I have read this release, I understand its contents, and I choose to sign it of my own free will and not under duress.
AGREED TO AND SIGNED:
January 23, 2009