The "direct threat" defense under the ADA: posing a threat to the protection of disabled employees: Equal Employment Opportunity Commission v. Wal-Mart Stores, Inc.

• Author: Duncan, Rene L.

1. INTRODUCTION

   The Americans with Disabilities Act (2) was passed with intentions of eliminating stereotypes and fear towards disabled individuals and their ability to function and contribute to society. (3) In the employment context, the Act will not permit an employer to refuse to hire an individual solely because of that person's disability. (4) However, it will permit the employer to defend such action when limitations caused by an individual's disability rise to the level of a direct threat to the safety of others. (5) When an employer raises such a defense, circuit courts are split as to whether the burden of proving the existence or absence of a threat should fall respectively on the employer or employee. (6) The Eighth Circuit addressed this issue in EEOC v. Wal-Mart Stores, Inc. and concluded that the employer bore the burden of proving direct threat posed by the employee, (7) thereby resolving a previously undecided issue within the circuit.

   After highlighting the pertinent facts and procedure of EEOC v. WalMart, this note will discuss the background of the Americans with Disabilities Act and introduce the direct threat provision. It will then lay out the court's analysis of the case in light of the framework of the ADA and how other circuits are split in their analyses. Ultimately, this note will argue that the Eighth Circuit's decision was correct and, although the court provided limited substantive reasoning, there is proper justification for the court's decision.

2. FACTS AND HOLDING

   Steven Bradley (hereinafter Bradley) suffered from cerebral palsy, a condition that limited the use of his legs, requiring crutches or a wheelchair, and also limited some hand motions. (8) He was, however, fully able to walk, climb stairs, write, hold items, lift heavy objects, and perform daily tasks. (9) In July 2000, Bradley applied for a position at Wal-Mart, (10) but two answers on his application were unapproved by the retailer. First, Bradley stated that while he "was willing to work from 4:30 p.m. until close during the weekdays, ... working on weekends was 'negotiable,'" (11) and Wal-Mart did not want to "fool with somebody [who was] negotiable." (12) Second, Bradley checked a box stating that he did not want Wal-Mart to contact his current employer, as he was afraid that his current employer would fire him if it found out he was seeking additional part-time work. (13) Since both of these answers raised a concern with Wal-Mart, Bradley was denied the position. (14)

   A short time later, the Wal-Mart store expanded, and its need for new employees increased. (15) As a result, Bradley again applied for a position in February 2001. (16) Bradley was given an interview, during which time the Wal-Mart interviewer mentioned that he was "best suited for a greeter [position]" because of his physical condition. (17) Again, however, Bradley was not hired, although the previous problematic responses were absent from his application. (18) This time, Bradley stated that he was seeking either full-time or part-time employment, including weekends. (19) Furthermore, Bradley made no indication that he wished Wal-Mart to refrain from contacting his current employer. (20)

   Bradley was unaware that Wal-Mart's refusal to hire him was questionable until he offered his services to the Equal Employment Opportunity Commission (EEOC) as a witness in another pending claim against WalMart. (21) An investigator from the agency interviewed Bradley and concluded that he had a claim of his own. (22) Shortly thereafter, a Charge of Discrimination was drafted and alleged that the retailer denied Bradley a position based on his disability. (23) After investigating the claim, the EEOC brought an action against Wal-Mart Stores claiming that Wal-Mart violated the Americans with Disabilities Act. (24)

   The EEOC asserted that Wal-Mart improperly declined to hire Bradley because of the mobility limitations caused by his condition. (25) Claiming that the EEOC failed to show Bradley was qualified for any position, Wal-Mart moved for summary judgment. (26) Accordingly, it "attempted to show that no genuine issue of fact existed as to whether Bradley was a qualified applicant either for the people greeter position or the cashier position." (27)

   Wal-Mart's 2001 "Cashier Job Description" and 2001 "People Greeter Job Description" spelled out the basic obligations and requirements of an employee in each position, and both stated that Wal-Mart would reasonably accommodate disabled individuals to enable them to "perform the essential job functions." (28) Wal-Mart used expert testimony based on an independent medical examination of Bradley to prove that "Bradley was not qualified to perform the essential functions of either job" because of physical limitations. (29) The EEOC also relied on expert testimony, which concluded that with reasonable accommodation, like a wheelchair, Bradley could indeed work as a cashier or greeter without posing a "direct threat" in either position. (30) While the Wal-Mart expert conceded that Bradley would be stable in something like a wheelchair, he concluded that Bradley would have to be standing generally about thirty-five to forty percent of the time and consequently still believed he would not be able to perform the essential functions of the job. (31)

   The District Court ultimately agreed with Wal-Mart and granted its motion for summary judgment. (32) The court found that the EEOC "failed to establish that Bradley was qualified to perform the essential functions of the greeter and cashier positions." (33) The EEOC moved for reconsideration, but the District Court denied that motion, stating that "summary judgment was also appropriate because the EEOC failed to present evidence [showing] that WalMart's [sic] reasons for not hiring Bradley were pretextual." (34)

   The EEOC appealed the district court's decision to the Eighth Circuit Court of Appeals, which reversed and held that issues of material fact remained. (35) More specifically, the court held three things: first, the EEOC established a prima facie case that Wal-Mart's failure to hire Bradley violated the ADA; (36) second, the EEOC presented sufficient evidence that there remained a genuine issue of material fact as to whether Wal-Mart's proffered reasons for not hiring Bradley were pretext for discrimination, thereby precluding summary judgment; (37) and finally, Wal-Mart failed to prove the affirmative defense of a direct threat. (38)

3. LEGAL BACKGROUND

   The Americans with Disabilities Act (39) was passed in 1990 in response to findings that "society has tended to isolate and segregate individuals with disabilities, and, despite some improvements, such forms of discrimination against individuals with disabilities continue to be a serious and pervasive social problem ... in such critical areas as employment." (40) Previous anti-discrimination legislation applying to the disabled population was limited in that it only applied to federal contractors. (41) The ADA was enacted to expand anti-discrimination legislation into other areas of society. As one of the "'most significant labor and employment statute[s]' signed into law in ... decades," the ADA "prohibit[s] discrimination on the basis of physical [and] mental disabilities, and mandat[es] affirmative action to remove obstacles that hamper disabled [persons]." (42) The purposes behind the Act include addressing major areas of discrimination faced daily by those with disabilities, (43) including preventing employment decisions based on stereotypes or fear and speculation regarding risk of harm to others. (44) The ADA addresses these goals by providing for them in various arenas, including employment. (45)

   In terms of employment, Title I of the Act provides that "[n]o covered entity shall discriminate against a qualified individual with a disability because of the disability of such individual in regard to job application procedures, the hiring, advancement, or discharge of employees, employee compensation, job training, and other terms, conditions, and privileges of employment." (46) A plaintiff may bring a claim for disparate treatment when an employment decision is made that treats the disabled individual less favorably than a non-disabled person. (47) Alternatively, a plaintiff may bring a reasonable accommodation claim in situations where an employer fails or refuses to provide a qualified disabled individual with an accommodation necessary to enable him to function in a given position. (48)

   The ADA was passed to expand the basic rights afforded under other civil rights legislation such as Title II and VII of the Civil Rights Act of 1964, (49) and is analyzed under the same framework used to analyze claims under the previous legislation. As with the other statutes, there are several frameworks under which one can bring an employment discrimination claim under the ADA, depending upon the type of discrimination alleged and the evidence available. (50)

   When there is no direct evidence of discrimination, federal courts apply the three-part proof structure of McDonnell Douglas Corp. v. Green. (51) Under this framework, the plaintiff must first establish a prima facie case of discrimination. (52) Second, "the burden shifts to the [employer] 'to articulate some legitimate, nondiscriminatory reason for the [adverse employment action].'" (53) Third, should the employer provide this reason, the burden shifts back to plaintiff to prove that the proffered reason is pretextual. (54) The defendant may also assert an affirmative defense as justification for the adverse employment action. (55)

   1. Plaintiff's Prima Facie Case

      To establish a prima facie case of discrimination, the plaintiff must show three things: (1) "that he has an ADA-qualifying disability," (2) "that he is qualified to perform the essential functions of his position," and (3) "that he suffered an adverse action due to his disability." (56) A disability...