Employer's Burden to Show "Direct Threat" in 8th Circuit
by Michael Fox
The 8th Circuit today reversed a summary judgment for Wal-mart in an ADA case. EEOC v. Wal-mart Stores (8th Cir. 2/13/07) [pdf]. Most of the disability aspect of the opinion deals with a factual dispute over whether or not an applicant with cerebral palsy could be accommodated as a greeter or a cashier. In a battle of dueling experts, the Court not surprisingly concluded — fact issue, remand for trial.
The Court also held that there was sufficient evidence of pretext to justify trial, given that the hiring manager's explanation that she knew of several short time jobs that he had failed to list as one of the reasons he was not hired, were all things that occurred after he had been turned down.
Before sending it back to the trial court, it also decided a case of first impression in the 8th Circuit, holding that on the issue of "direct threat" the burden lies with the employer as it is an affirmative defense.