Labor & Employment Law Daily Wrap Up, DISCRIMINATION—DISABILITY—W.D. Ark.: Walmart defeats EEOC’s unlawful screening claim but some disability bias claims advance, (Sep 10, 2026)

By Kathleen Kapusta, J.D.

The EEOC brought this action under the ADA alleging that Walmart subjected employees to an unlawful qualification standard known as the Pathways Graduation Assessment.

Granting summary judgment against the EEOC’s claim that Walmart’s use of its Pathways Graduation Assessment (PGA), which all entry-level associates were required to pass, unlawfully screened out individuals with disabilities in violation of the ADA, a federal court in Arkansas found the agency failed to present any statistically significant evidence showing the PGA disproportionately impacted people with disabilities. Walmart, however, was not entitled to summary judgment against the ADA disability discrimination claims of two employees, one with a learning disability and one who is deaf, who failed the PGA or the failure-to-accommodate claims of several other former employees. The court also deferred ruling on Walmart’s motion regarding the EEOC’s request for punitive damages until the close of all evidence at trial (EEOC v. Walmart, Inc., No. 5:23-CV-05149 (W.D. Ark. Sept. 9, 2026)).

Pathways. In 2016, Walmart began requiring all entry-level, hourly associates hired to full- or part-time positions at Walmart Supercenters and Neighborhood Markets nationwide to complete a training program called “Pathways.” The program, which consisted of a computer-based component and an in-person component, was divided into four main phases and ended in graduation. To complete the graduation phase, which was required for continued employment, associates had to pass an attendance check, a performance sign off, and the PGA.

The PGA was a multiple-choice test administered on a computer and associates were given three attempts to achieve a passing score. Although Walmart contended that it had several accommodation policies in place during the time it enforced the Pathways training program, the parties disputed the extent to which the policies were “implemented, used, and adhered to” by Walmart and its management teams at different stores.

EEOC investigation. When, in 2018, former Walmart employees began filing charges with the EEOC regarding the PGA, the agency notified the retailer that it intended to investigate a nationwide class related to discrimination. It ultimately found it reasonable to believe Walmart had violated the ADA with respect to two charging parties as well as a class of aggrieved individuals.

Lawsuit. The EEOC then sued on behalf of the two charging parties and 11 opt-in claimants, most of whom had learning disabilities or were deaf and who had taken and failed the PGA more than once. The EEOC asserted that Walmart’s use of the PGA unlawfully screened out, or tended to screen out, individuals with disabilities; Walmart failed to provide the charging parties and claimants with reasonable accommodations to take the PGA; and the charging parties and claimants were fired when they failed to achieve the minimum required score on the PGA.

Unlawful screening claim. Moving for partial summary judgment, Walmart first argued that the court should evaluate the EEOC’s unlawful screening claim as one for disparate impact, which requires comparative statistical evidence. The EEOC, in response, contended that ADA Section 12112(b)(6) permits unlawful screening claims to be brought by an individual plaintiff, and those claims do not require statistical evidence to establish the initial burden.

Although there was no clear consensus among courts concerning disparate-impact claims within the context of the ADA, the Eighth Circuit, the court here observed, has consistently required statistical evidence to establish a prima facie disparate-impact claim under Title VII and the ADEA. It has also explained that “[d]isparate treatment claims under Title VII [and] the ADA... are analyzed in the same manner.”

In the absence of direct authority, the court, applying these Eighth Circuit cases, found that a prima facie case of unlawful screening under a disparate-impact theory requires statistical evidence showing that the employment policy or practice caused a disparate effect on people with a qualified disability. Here, the PGA was neutral on its face and uniformly applied to all newly hired associates and the EEOC’s claim rested on its discriminatory effect of screening out or tending to screen out individuals with disabilities.

Moreover, the evidence revealed that out of 711,403 associates who took the PGA, Walmart provided the EEOC with contact information for 5,391 who were discharged after failing it; the EEOC identified 226 potential aggrieved individuals; and it brought claims on behalf of only 11 of those individuals. Because the EEOC presented no statistically significant evidence showing that the PGA disproportionately impacted people with disabilities, the court found it failed to establish a prima facie case for their unlawful-screening and it granted summary judgment against this claim.

Disability discrimination—first claimant. Walmart next argued that the EEOC failed to establish a prima facie case of discrimination on behalf of two claimants, one deaf and one with learning disabilities. As to the one with learning disabilities, Walmart argued that she was unable to perform the essential functions of her cashier job because of her reoccurring attendance issues, which were the ultimate cause for her termination.

While her attendance records revealed that, within a three-month period, she accumulated “occurrence” points for arriving late to her shift eight times and missing a shift entirely without giving notice, three of those occurrence points were acquired after she took the PGA and, according to the Pathways Implementation Guides, associates would not be approved to take the PGA unless they passed the attendance check, which was an automatic system check to determine if the associate was in compliance with the attendance policy.

Noting that it was undisputed the claimant was allowed to take the PGA and was terminated one week later, the court found a material fact issue as to whether punctuality to scheduled shifts—or compliance with Walmart’s attendance policy that was not included in the record—was an essential function of her job and that she suffered an adverse employment action under circumstances giving rise to an inference of unlawful discrimination based on disability.

Second claimant. As to the second claimant, Walmart argued that in her deposition, she responded “no” to a single question asking if she believed “being deaf [was] a reason that [she] did not pass the PGA tests.” Finding this argument specious at best, the court noted that Walmart “cherry-picks a single question and answer from nearly one hundred pages of deposition testimony to argue that there is no dispute as to whether a causal link exists between [her] deafness and her failing the PGA.”

Indeed, said the court, there were several instances during her testimony in which her initial answer was later contradicted by a more developed response after further questioning, which illustrated “the language barrier that deaf individuals may face when reading or communicating in English—the very barrier that provides the causal link between [the claimant’s] disability and her termination for failing the PGA, which Walmart now attempts to deny.”

Noting further that the claimant testified that she failed the PGA because she did not understand the written questions and answers—a consequence of her deafness—and did not have an interpreter to translate English into American Sign Language, the court found this was supported by her ability to pass the PGA on her fourth attempt when Walmart invited her back after her termination and allowed a coworker to assist her on the exam by explaining questions that she had difficulty understanding. Thus, a reasonable juror could find a causal connection between her disability and her termination, said the court, denying summary judgment as to the claims asserted on behalf of both claimants.

Failure to accommodate. Turning to Walmart’s motion for summary judgment on the failure-to-accommodate claims asserted on behalf of one charging party and seven claimants, the court first found a fact issue as to whether the retailer engaged in the interactive process or attempted to provide reasonable accommodation to two claimants. The claimants alleged that they had requested assistance with the PGA and either received no help or received ineffective help. Accordingly, summary judgment was denied as to them.

With regard to the charging party, however, the EEOC argued that Walmart knew she was deaf and failed to initiate the interactive process as required by its Pathways Accommodation policy. Granting summary judgment against this claim, the court was unpersuaded by the EEOC’s assertion that Walmart’s company policies had the effect of “assum[ing] responsibility for initiating the interactive process.”

Reasonable accommodation. Disagreeing next with Walmart’s contention it provided three claimants with the accommodations they requested, the court pointed out that as to the first one, who requested that the company remove one answer out of the options choices on the multiple choice test, Walmart instead had someone read the exam out loud to her, which did not prove to be enough assistance. Although Walmart was not required to provide the exact accommodation she requested, it was required to consult with her and identify potential accommodations that would have been effective.

And while another claimant requested assistance on the PGA because he was having difficulty understanding the questions and answers as written, he testified that the person who was supposed to help on his second attempt was unable to assist him on the entire exam because they had to help other people during that same time. Further, he testified, the assistant manager interrupted his third and final attempt on the PGA and told him to “hurry up [and] get back to doing carts.”

Finally, the court noted that Walmart declined to provide a claimant with an accommodation on the PGA when he requested assistance on his second attempt and fired him after he failed. He passed the PGA, however, on his third attempt after vocation rehabilitation services intervened on his behalf after he had been discharged and Walmart allowed him to take the PGA with assistance. Denying summary judgment on all three claims, the court found a material fact issue as to whether Walmart made a good-faith effort to provide them with reasonable accommodations.

Injunctive relief. The EEOC also requested a permanent injunction mandating that Walmart refrain from engaging in any employment practice that discriminates based on disability or the need for a reasonable accommodation; from discriminating against individuals with disabilities; and from interfering with any individual in the exercise or enjoyment of, or on account of their having exercised or enjoyed, or on account of their having aided or encouraged any other individual in the exercise or enjoyment of any right protected by the ADA. Finding this impermissibly vague, the court granted summary judgment against the agency’s request for injunctive relief.

Time-barred. Finally, the court found that the damages claims brought on behalf of one charging party and one claimant were time barred.

The case is No. 5:23-CV-05149.

Judge: Fowlkes, D.

Attorneys: Donnie Allen Snow for the EEOC. Emmett B. Chiles, IV (Quattlebaum, Grooms, Tull & Burrow) for Walmart, Inc., and Walmart Stores Arkansas, LLC.

Companies: Walmart, Inc.; Walmart Stores Arkansas, LLC

Cases: DisabilityDiscrimination Discrimination Discharge RemediesDamages ArkansasNews GCNNews