SETTLEMENT AGREEMENT BETWEEN
THE UNITED STATES OF AMERICA
AND
WALGREEN COMPANY
UNDER THE AMERICANS WITH DISABILITIES ACT
DJ# 202-46-178

BACKGROUND

1. The parties to this Settlement Agreement are the United States of America and Walgreen Company (“Walgreens”).
2. This matter is based upon a complaint filed with the United States Department of Justice, in which a Complainant alleged that Walgreens discriminated against him on the basis of his disability in violation of Title III of the Americans with Disabilities Act (“ADA”), 42 U.S.C. §§ 12181-12189.  Specifically, the Complainant alleges that Walgreens refused him a flu shot based on his human immunodeficiency virus (“HIV”) diagnosis.
3. The parties have reached agreement that it is in the parties’ best interests, and the United States believes that it is in the public interest, to resolve this dispute.  The parties have therefore voluntarily entered into this Agreement as follows:

TITLE III COVERAGE AND FINDINGS

4. The Attorney General is responsible for administering and enforcing Title III of the ADA, 42 U.S.C. §§ 12181-12189, and the relevant regulation implementing Title III, 28 C.F.R. Part 36.
5. The Complainant, an individual with HIV, has a physical impairment that substantially limits one or more major life activities, including the functions of the immune system.  Accordingly, he has a disability within the meaning of 42 U.S.C. § 12102 and 28 C.F.R. § 36.105.
6. Walgreens is a retail store and pharmacy chain, headquartered in Deerfield, Illinois, and has over 9,500 retail stores across the United States.
7. Among its over 9,500 locations, Walgreens operates a retail store and pharmacy at 6825 North Durango Drive, Las Vegas, Nevada 89149 (“Store # 12539”).
8. Walgreens owns, leases (or leases to), or operates places of public accommodation within the meaning of 42 U.S.C. § 12182(a). Walgreens is a public accommodation within the meaning of 42 U.S.C. § 12181(7) because it is a private entity and its operations affect commerce and comprise a service establishment.  42 U.S.C. §§ 12181(6) and (7); 28 C.F.R. § 36.104.
9. 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).
10. The United States is authorized to investigate alleged violations of Title III of the ADA.  42 U.S.C. § 12188(b); 28 C.F.R. § 36.502.  It is also authorized, where appropriate, to use alternative means of dispute resolution, including settlements, to resolve disputes.  42 U.S.C. § 12212; 28 C.F.R. § 36.506.  The United States may bring a civil action in federal court when the Attorney General has reasonable cause to believe that a person is engaged in a pattern or practice of discrimination or when any person has been discriminated against and such discrimination raises an issue of general public importance.  42 U.S.C. § 12188(b); 28 C.F.R. § 36.503.  Ensuring that medical care providers do not discriminate on the basis of disability is an issue of general public importance.
11. As a result of its investigation, the United States has substantiated the following facts:
1. On September 29, 2017, at the pharmacy at Walgreens Store #12539, the Complainant requested a flu shot.
2. The Complainant disclosed that he has HIV in response to a form from Walgreens.
3. A Walgreens pharmacist told the Complainant the pharmacist was not permitted to give the Complainant a flu shot because of his HIV. The Complainant left upset and with no flu shot.
4. On October 4, 2017, the Complainant filed a complaint with Walgreens regarding his denial of a flu shot.
5. The Complainant was never offered or given a flu shot by Walgreens.
12. A healthcare provider cannot refer a patient with HIV or acquired immunodeficiency syndrome (“AIDS”) to another provider simply because the patient has HIV or AIDS.  Any referral may be based on the fact that the treatment the patient is seeking is outside the expertise of the provider, but cannot be based on the patient’s HIV or AIDS status alone.  See 28 U.S.C. § 12182(b)(2)(A)(ii); 28 C.F.R. § 36.302(b).
13. According to the Centers for Disease Control, people with HIV are at high risk of serious flu-related complications.  Because the flu can result in serious illness, a flu vaccination is recommended for people with HIV.  See Flu and People Living HIV, available at https://www.cdc.gov/flu/highrisk/hiv-flu.htm.
14. The United States has substantiated the complaint that Walgreens discriminated against the Complainant by denying him the opportunity to participate in or benefit from the goods, services, facilities, privileges, advantages, or accommodations of Walgreens on the basis of HIV, in violation of 42 U.S.C. § 12182 and 28 C.F.R. § 36.201.
15. The Complainant is an aggrieved person pursuant to 42 U.S.C. § 12188(b)(2)(B).
16. This Agreement does not constitute an admission by Walgreens of any violation of Title III of the ADA.

ACTIONS TO BE TAKEN BY WALGREENS

17. Walgreens, including its pharmacies and pharmacists, consistent with its company policies regarding non-discrimination against customers, will not discriminate against any individual on the basis of disability, including HIV or AIDS, in the full and equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations offered at any of its current or future locations, in violation of Title III of the ADA, 42 U.S.C. § 12182, and its implementing regulation, 28 C.F.R. Part 36.
18. Walgreens agrees to continue to follow its Immunization Policy, last revised on January 27, 2020, which expressly prohibits the aberrant actions taken by the pharmacist who refused to provide an immunization to the Complainant because of his medical condition.  Walgreens also agrees to continue to follow its Policy Against Harassment and Discrimination, last revised on October 8, 2018, which sets forth the Company’s expectations of a shopping environment free of discrimination of any kind.  In addition, Walgreens will continue to follow its Access to Services Policy, which memorializes Walgreens’ goal of championing everyone’s right to be happy and healthy by providing all people, including those with disabilities, with the opportunity to access goods, facilities, privileges and services offered by Walgreens.  Walgreens will maintain and enforce the aforementioned policies for the duration of this Agreement.  This Access to Services Policy statement, currently located at https://www.walgreens.com/topic/information/access-to-services.jsp, will be conspicuously posted on the company’s main pharmacy webpage or “homepage,” as well as on the homepage of any current or future Walgreens website.
19. Walgreens will also continue to train its pharmacists via online module regarding its Immunization Policy in June 2020 and every year thereafter for the duration of this Agreement.  Furthermore, Walgreens will revise the content of this online module to add the following statement: “According to the Centers for Disease Control, people who are immunocompromised or immunosuppressed, such as individuals living with HIV or AIDS, are at high risk of serious flu-related complications.  Because the flu can result in serious illness, a flu vaccination is recommended for people with HIV or AIDS.  See Flu and People Living HIV, available at https://www.cdc.gov/flu/highrisk/hiv-flu.htm.” As part of its training commitment, Walgreens will mandate this pharmacist training and will electronically track when pharmacists are assigned this online module and when pharmacists have completed this online module.
20. Within 30 days of the effective date of this Agreement, and upon receipt of a signed Release of Claims (Attachment A), Walgreens will pay $24,000 to the Complainant to compensate him for the harm he has endured, including emotional distress, pain, and suffering, as a result of Walgreens’ failure to provide him with a flu shot.
21. Within 30 days of the effective date of this Agreement, Walgreens will pay a civil penalty in the amount of $15,000 as authorized by 42 U.S.C. § 12188(b)(2)(C) and 28 C.F.R. § 36.504(a)(3), as amended, in order to vindicate the public interest.

OTHER PROVISIONS

22. In consideration for the Agreement set forth above, the United States will close its investigation of DJ # 202-46-178 and will not institute a civil action at this time alleging discrimination based on the facts set forth in paragraph 11.  However, the United States may review Walgreens’ compliance with this Agreement or Title III of the ADA at any time.  If the United States believes that Title III of the ADA, this Agreement, or any portion of it has been violated, the United States will notify Walgreens in writing and the parties will attempt to resolve the issue in good faith.  If the United States is unable to reach a satisfactory resolution of the issue within 60 days of the date it notifies Walgreens, the United States may institute a civil action in the appropriate U.S. District Court to enforce this Agreement and/or Title III of the ADA.
23. 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.
24. 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 Walgreens 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.
25. This Agreement is binding on Walgreens, including all principals, agents, executors, administrators, representatives, employees, successors in interest, beneficiaries, and assignees.  In the event that Walgreens 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, Walgreens will obtain the written agreement of the successor, buyer, transferee, or assignee to all obligations remaining under this Agreement for the remaining term of this Agreement.
26. The signatory for Walgreens represents that they are authorized to bind Walgreens to this Agreement.
27. This Agreement constitutes the entire agreement between the United States and Walgreens 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 attachments, is enforceable.  This Agreement can only be modified by mutual written agreement of the parties.
28. This Agreement is not intended to remedy any other potential violations of the ADA or any other law that is not specifically addressed in this Agreement, including any other claims for discrimination on the basis of HIV or AIDS.  Nothing in this Agreement relieves Walgreens of its obligation to fully comply with the requirements of the ADA.
29. Walgreens shall not discriminate or retaliate against any person because of his or her participation in this matter.

EFFECTIVE DATE/TERMINATION DATE

30. The effective date of this Agreement is the date of the last signature below.
31. The duration of this Agreement will be three years from the effective date.