APPEALS COURT UPHOLDS EEOC DISABILITY SUIT AGAINST SEARS ROEBUCK FOR SECOND TIME

Seventh Circuit Again Reverses District Court Judgment In Favor Of Sears In Long-Running Federal Employment Discrimination Case

CHICAGO -- The U.S. Court of Appeals for the Seventh Circuit, sitting in Chicago,   has reversed a lower court decision which granted a judgment without trial in   favor of Sears Roebuck in a case brought against the retailer by the U.S. Equal   Employment Opportunity Commission (EEOC) under the Americans with Disabilities   Act (EEOC & Keane v. Sears Roebuck & Company, 7th Cir. Nos. 04-2222   and 04-2493, 8/10/2005). A previous judgment by the lower court in favor of   Sears in the same case had also been reversed by the Court of Appeals in 2000.

The case was originally filed by the EEOC in June 1997. It alleged that Sears   discriminated against a lingerie saleswoman in the giant retailer's Calumet   City, Illinois, store by refusing to provide her with a reasonable accommodation   necessitated by medical conditions which prevented her from walking more than   short distances (EEOC v. Sears Roebuck & Co., N.D. Illinois No. 97 C 3971).   After Sears' refusal to accommodate her, the employee gave up her job. The U.S.   District Court for the Northern District of Illinois then held that no reasonable   jury could find that the saleswoman was disabled and entered judgment in favor   of Sears without a trial.

The Court of Appeals overturned that judgment in 2000 (See EEOC & Keane   v. Sears Roebuck & Co., 233 F.3d 432 - 7th Cir. 2000), and sent the case   back to the District Court. Sears renewed its motion for judgment, and the District   Court – after the Supreme Court's 2002 decision in the Toyota Motor Manufacturing   v. Williams case (534 U.S. 184) – again entered judgment without trial   and in favor of Sears. EEOC again appealed.

In the new 32 page opinion by Chief Judge Joel M. Flaum, again reversing the   judgment and sending the case once more back to the District Court, the Seventh   Circuit paved the way for the trial of the case before a jury: "Our task   has not been to determine whether Keane was disabled when she worked at Sears,   whether Sears was aware of her disability, whether Sears reasonably accommodated   Keane's disability, or which party caused the break-down of the interactive   process."

Judge Flaum continued: "Rather, we have merely concluded that there is   sufficient evidence to allow each of these questions to be presented to a jury.   Accordingly, we REVERSE the entry of summary judgment in favor of defendant-appellee   Sears and REMAND for proceedings consistent with this opinion."

Circuit Judges Michael S. Kanne and Ann C. Williams joined in the Court's   unanimous decision. EEOC attorney Gail Coleman and the agency's Appellate Services   division were on the brief in the Seventh Circuit, and Ms. Coleman presented   the case at oral argument before the Court on May 10, 2005. The Seventh Circuit's   opinion is dated August 10, 2005, and is available on the Court's web site.

John Hendrickson, EEOC Regional Attorney in Chicago said, "Our office   in Chicago and our appellate staff in Washington have been pressing this case   for eight years because, in our judgement, Sears intentionally and illegally   discriminated against a disabled employee when it would have been easy to accommodate   her. We have always believed this is a case that must be ultimately decided   by a jury – that the employee deserves her day in court. The Seventh Circuit   has made it clear that day now is going to be coming sooner rather than later."

Hendrickson noted that this is the second recent significant set-back here   for Sears in EEOC lawsuits brought against it under the Americans with Disabilities   Act (ADA) and challenging the company's compliance with the ADA requirement   that it provide reasonable accommodations to disabled employees. On August 2,   2005, EEOC announced that Judge Wayne R. Anderson of the Northern District of   Illinois had denied Sears' motion to dismiss in EEOC v. Sears Roebuck &   Co, N.D. Illinois No. 04 C 7282, an ADA lawsuit filed November 10, 2004.

In that 2004 case, EEOC is challenging Sears' practice of inflexibly firing   employees under its one-year worker's compensation or medical-disability leave   policy, and Judge Anderson wrote, "As for the class allegations, the Complaint   alleges that Sears 'maintained an inflexible worker's compensation one   year leave policy which does not provide for reasonable accommodation of employees   with disabilities.' We find that the issue of whether defendant's leave policy   fails to accommodate its disabled employees is an issue upon which defendants   have been given notice and is a claim for which [EEOC is] entitled to discovery."

EEOC is the federal agency charged with the administration, interpretation   and enforcement of Title VII of the Civil Rights Act of 1964, as amended, which   prohibits employment discrimination based on race, color, religion, sex, pregnancy   or national origin. The EEOC is also responsible for enforcing the Age Discrimination   in Employment Act of 1967, as amended; the Equal Pay Act of 1963; and the Americans   with Disabilities Act of 1990, which prohibits discrimination based on disability.   More information about the EEOC and the laws it enforces can also be found at   www.eeoc.gov.