Wal-Mart’s problems with the Equal Employment Opportunity Commission continued last week.  The Eighth Circuit Court of Appeals reversed a lower court’s grant of summary judgment for Wal-Mart in a suit brought by the EEOC alleging violation of the Americans with Disabilities Act.  The agency claimed that Wal-Mart illegally refused to hire an applicant with cerebral palsy for positions as either a greeter or a cashier.  In its defense, Wal-Mart provided expert testimony indicating that the applicant was unable to perform the essential functions of either position, and that hiring him would place him in direct danger of injury.

 

The EEOC presented its own expert testimony suggesting a number of ways in which Wal-Mart could have accommodated the applicant through special chairs, use of handheld scanners, and the like.  This created a material question of fact to be submitted to a jury at trial.  Wal-Mart’s defense was further undercut by contradictory testimony by its store managers regarding the reasons for refusing to hire the plaintiff.  The store manager cited reasons for refusing to hire the plaintiff that did not arise until after his application had been rejected.  Finally, the Eighth Circuit found no convincing proof of a direct threat of injury to the plaintiff from working at Wal-Mart if the recommended accommodations had been provided.  For relatively low level positions that do not appear on their face to be particularly dangerous or strenuous, courts will hold employers to a higher burden when they refuse to hire a qualified disabled applicant.