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Josefina Hernandez was an employee at a Walgreens store in California. In 2008, she was fired from her job after violating company policy for eating a $1.39 bag of potato chips at work without paying for the item. As it turns out, Hernandez was a known diabetic who was experiencing a hypoglycemic attack and consumed the chips to stabilize her blood sugar. Because of the attack, she says she was unable to pay for the item before eating it. Hernandez tried to explain this to a Walgreens’ security guard, but to no avail. Hernandez was fired for violating Walgreens’ “anti-grazing” rule.


The EEOC sued Walgreens on Hernandez’s behalf arguing her actions in stealing the potato chips should have been excused as a reasonable accommodation of a disability under the Americans with Disabilities Act. After lengthy litigation, the lawsuit settled, resulting in a $180,000 payment to Hernandez. The settlement also included revisions to certain Walgreen policies and anti-discrimination training for certain employees. (EEOC v. Walgreen Co., N.D. California, Case No. 11-4470, 7/1/14 consent decree).


This case highlights the difficulties employers face in deciding whether they can or should accommodate an employee who claims to suffer from a disability. In situations where an employee suffers from a disability known to the employer, it is important to investigate whether alleged employee misconduct relates to a disability prior to taking action. This is especially true where the accommodation at issue is relatively trivial (here, a $1.39 bag of chips).