EEOC Lawsuit Against Wal-Mart Revived

From the Kansas City (Mo.) Star:

A federal appeals court Tuesday reinstated a lawsuit alleging that Wal-Mart Stores violated the Americans with Disabilities Act when it refused to hire a job applicant with cerebral palsy.

The case was filed by the Equal Employment Opportunity Commission in January 2004 on behalf of Steven J. Bradley Jr.

In August 2005, U.S. District Judge Gary Fenner in Kansas City granted Wal-Mart’s motion for summary judgment and threw the suit out. Fenner found that Bradley’s mobility limitations rendered him unsuitable for the positions of greeter and cashier.

In reinstating the suit, the 8th U.S. Circuit Court of Appeals did not rule on the merits of the case. Rather, it concluded that significant facts remained in dispute, making summary judgment inappropriate.

“We’re obviously delighted with the decision,” said Robert Johnson, regional attorney for the EEOC. “We presented substantial evidence that Mr. Bradley was totally qualified to be either a greeter or a cashier, and it’s really up to the jury to decide that question, not the court, as was done here.”

A Wal-Mart spokesman did not return a call seeking comment.

The 8th Circuit’s decision was significant because, for the first time, it ruled that when an employer claims it didn’t hire a disabled applicant because the applicant posed a threat to the safety of himself or others, the burden is on the employer — not the applicant — to prove it.

“It places the emphasis where it’s supposed to be,” Johnson said.

The case was the first EEOC disability-related lawsuit against Wal-Mart since the agency and the retailer signed a $6.8 million consent decree in December 2001. The decree resolved 13 disability-related lawsuits, including one out of Clinton, Mo., that involved Wal-Mart’s failure to hire a man who used a wheelchair.

Bradley originally applied for a greeter/customer assistant position at Wal-Mart in July 2000. He reapplied in early 2001, when Wal-Mart was expanding its Supercenter in Richmond, Mo., and needed additional employees.

Bradley used forearm crutches for short-distance walks and a wheelchair for longer distances. Standing for more than 10 or 15 minutes was difficult for him, but he could climb stairs and get on and off a stool. His hand dexterity was limited, but he could write and hold things and lift heavy objects from his wheelchair.

He was called in for an interview for a position at the Supercenter and arrived in his wheelchair. He was turned down for the job.

In pretrial testimony, Chris Fevurly, a medical expert for Wal-Mart, concluded that Bradley wasn’t qualified to perform the essential functions of either greeter or cashier. But an expert for the EEOC, vocational rehabilitation consultant Kent Jayne, found that he could do either job with reasonable accommodation.

In its decision, a panel of the 8th Circuit ruled that Wal-Mart had offered “no evidence that Bradley cannot perform the essential functions of the greeter and cashier positions with reasonable accommodation; instead, it attacks the credibility of Jayne’s testimony. Such a credibility determination is best reserved for juries.”

The panel also found that the EEOC had mustered sufficient evidence that the reasons Wal-Mart gave for not hiring Bradley — namely his limited availability and his job history — were a pretext.

Finally, the court ruled that an employer asserting a “direct threat” defense bears the burden of proof. Wal-Mart, it said, had failed to explain how Bradley, “using a wheelchair or other similar device, poses any more of a threat than Wal-Mart customers who shop using such devices.”