Guest Post: 8th Circuit Holds Employer has Burden of Proving Direct Threat

Today we have a guest post from a friend and great lawyer Brian East. Brian is a civil rights lawyer with Advocacy Inc., which represents disabled individuals in civil rights matters. It is my sincere hope that Brian will agree to do more guest posting as often as possible.In this post, Brian discusses the Eighth Circuit's recent ADA opinion in EEOC v. Wal-Mart. In EEOC v. Wal-Mart Stores, Inc., ___ F.3d ___, 2007 WL 447941 (8th Cir. Feb. 13, 2007), Steven Bradley alleged that Wal-Mart failed to hire him as a greeter or cashier because of his cerebral palsy. The fact of Mr. Bradley's disability was not contested by the company, but the trial court granted summary judgment for Wal-Mart, finding that Bradley was not "qualified," and that there was insufficient evidence of pretext. The 8th Circuit reversed. Here are some of the (to me) important points:1. The court recognized that if an employee cannot perform the essential job functions without an accommodation, he or she "must only make a facial showing that a reasonable accommodation is possible. . . . [Then] the burden of production shifts to the employer to show that it is unable to accommodate the employee." (internal quotes omitted)2. Through its two experts, a vocational rehabilitation consultant and a medical center case coordinator (who did a "functional capacity assessment"), the EEOC made a "facial showing" that certain specified reasonable accommodations would enable Bradley to perform the essential job functions.3. The fact that the experts did not observe Bradley using these devices or performing the duties did not defeat the "facial showing."4. The defense attack on the experts involved a credibility determination "best reserved for juries."5. Wal-Mart's own expert admitted that the accommodation of using a wheelchair would work, and Wal-Mart's own "Resource Retention Guide" suggests accommodations that might assist employees with mobility limitations, with one illustration specifically involving a "cashier who uses a wheelchair."6. With regard to the legitimate nondiscriminatory reason, the court observed that an "employer is prohibited from inventing a post hoc rationalization for its actions at the rebuttal stage of the case." (internal quotes omitted)7. One reason Wal-Mart gave for not hiring Bradley was the fact that the hiring supervisor supposedly knew of 3 jobs Bradley had held with other employers in the past that he did not put on his application. It turned out that he never had one, he did not get another until after the decision at issue here, and the third he only had for a few hours. Neither of the first two could have motivated the decision, and the jury could have doubted the supervisor saw him in the last (as she said) because it was so brief. (There was also a fact dispute about who actually made the decision.)8. The supervisor also claimed to rely on Bradley's limited availability in denying him the jobs, but that was only evident in an earlier application the previous year, and the hiring committee did not normally look at that, the jury could disbelieve that the supervisor could recall it, and she admitted that based on the latter application (the one at issue), she would not have questioned his availability.9. The 8th Circuit held that the burden of proof on the affirmative defense of direct threat is on the employer. (Note that although the court did not explicitly discuss those cases requiring the plaintiff to prove safety as part of his/her burden on "qualified," it seems that the court followed the EEOC's view that in cases like this, in which the job at issue was not fundamentally about safety [in contrast to, say, a line police officer or firefighter], safety only comes up as a defense.)10. Wal-mart's expert failed to present evidence that a reasonable accommodation--such as a wheelchair--would not eliminate the risks he identified. Furthermore, Wal-Mart failed to explain how Bradley, using a wheelchair or other similar device, would pose any more of a threat than Wal-Mart customers who shop using such devices.------Thanks to Brian for his post. The issue of who has the burden of showing a "direct threat" in an ADA case is ripening into a large circuit split that will need to be addressed by the Supreme Court. In holding that the burden of proving that an employee's disability poses a direct threat to the employee or others rests on the employer the Eighth Circuit joins the Second, Seventh and Ninth Circuits. The First, Tenth and Eleventh Circuits and maybe the Fifth would place the burden on the employee.