By Lauren Berg

Law360 (August 21, 2020, 5:29 PM EDT) -- Immunocompromised shoppers accusing Walmart of discrimination for its practice of relying on security guards to determine who is eligible to shop during the chain's exclusive hours set aside for disabled people during the coronavirus pandemic have asked a D.C. federal judge for class certification.

Cheketa McKnight-Nero, who filed the proposed class action in June, is seeking to represent a class of potentially thousands of immunocompromised Walmart shoppers who allege the retail giant has a discriminatory practice of using security guards to decide who does or does not qualify as disabled or immunocompromised, according to Thursday's motion.

During the COVID-19 pandemic, Walmart has designated exclusive shopping times, usually early in the morning, for elderly, disabled and immunocompromised people to do their shopping while the store is less busy in order to prevent them from coming into contact with more people than necessary, according to the motion.

McKnight-Nero, who is diabetic and has a rare blood cancer, among other illnesses, is considered immunocompromised and at a higher risk of contracting COVID-19, caused by the novel coronavirus, according to her complaint. Knowing Walmart had special hours for people with impaired immune systems, she went to a D.C. location in May, but said she was turned away by the security guard.

The guard, she said, didn't believe she was immunocompromised and wouldn't permit her to use the exclusive hours.

"Plaintiffs allege that Walmart's policy of posting door guards or hired security to determine who is immunocompromised or not, is an unfair policy that disproportionately impacts those with unseen or non-visible disabilities, and increases their risk of harm by shopping with the general public," McKnight-Nero said in her motion Thursday.

The suit includes claims of negligence, as well as violations of the D.C. Human Rights Act and the Americans with Disabilities Act.

In her motion Thursday, McKnight-Nero said class certification is appropriate because the suit alleges Walmart has a policy or practice of allowing security guards to restrict or select immunocompromised consumers from its stores that affects every single class member. Such a policy discriminates against those with non-visible disabilities and increases their risk of contracting COVID-19, according to the motion.

"Our client's goal is to ensure that every consumer has the ability to shop safely during the COVID-19 pandemic, and free of discrimination," McKnight-Nero's counsel, Ikechukwu Emejuru of Emejuru Law LLC and Andrew Nyombi of KNA Pearl LLC, told Law360 on Friday.

Walmart has filed to dismiss the suit, according to court records, arguing that, while McKnight-Nero's experience with one security guard on one occasion is "regrettable," it doesn't amount to disability discrimination.

"Walmart strives to treat all customers with respect and dignity," a spokesman for the company told Law360 on Friday. "We deny the allegations in the complaint, plan to defend the company and have asked the court to dismiss the case."

Counsel for McKnight-Nero did not immediately respond to a request for comment.

McKnight-Nero and the proposed class are represented by Ikechukwu Emejuru of Emejuru Law LLC and Andrew Nyombi of KNA Pearl LLC.

Walmart is represented by John M. Majoras, Yaakov M. Roth, William G. Laxton Jr. and Debra R. Belott of Jones Day.

The suit is Cheketa McKnight-Nero v. Walmart Inc., case number 1:20-cv-01541, in the U.S. District Court for the District of Columbia.

--Editing by Marygrace Murphy.

Update: This story has been updated with comment from the plaintiff's counsel.

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