Wal-Mart to pay rejected applicant $300,000

June 13, 2008

Excerpted from Missouri Employment Law Letter written by attorneys at the law firm of Armstrong Teasdale LLP

by John Vering

On April 17,2008 the Equal Employment Opportunity Commission (EEOC) announced that Wal-Mart Stores, Inc., had agreed to pay $300,000 to a Hardin, Missouri man to settle a disability discrimination lawsuit. In addition, Wal-Mart agreed to provide training on the Americans with Disabilities Act (ADA) to managers at its Richmond, Missouri store, notify job applicants about the settlement, and inform several Kansas City-area job service agencies that the company seeks to employ qualified individuals with disabilities.

The parties expect the court to approve the settlement. Read on to see what Wal-Mart did that resulted in such a large settlement and how you can avoid a similar result.

Facts
Steve Bradley has cerebral palsy and uses crutches or a wheelchair for mobility. He applied for employment with Wal-Mart when it was engaged in mass hiring for a new Supercenter in Richmond in 2001. He applied for any available position but was questioned in his interview about his ability to work using his wheelchair and was told he was "best suited" for a greeter position. Ultimately, the company refused to hire him. Afterward, he filed a disability discrimination charge, and the EEOC filed suit on his behalf in federal court in Kansas City.

Court proceedings
The trial judge ruled that the EEOC's lawsuit had no merit because Bradley's impairment rendered him unqualified for any position and because he failed to prove that Wal-Mart's excuse for not hiring him was a pretext for discrimination. Bradley then appealed to the Eighth U.S. Circuit Court of Appeals.

Wal-Mart argued to the appellate court that Bradley would pose a safety risk to himself or customers if he worked at the store using a wheelchair or crutches. But the court disagreed. In an April 2007 ruling, the Eighth Circuit determined that an employer bears the burden of proving that a disabled employee or applicant poses a "direct threat" to the health or safety of himself or others.

Therefore, it would be up to a jury to determine if Bradley had been discriminated against on the basis of his disability. The case was set to go to trial in March 2008 but was settled before heading back to court.

Bottom line
In announcing the settlement, Jean P. Kamp, acting regional attorney for the EEOC, stated, "This case sends an important message to employers that they cannot allow stereotypes or assumptions about disabled people to interfere with those people's right to work in jobs for which they are qualified." She went on to point out, "Unfortunately, Wal-Mart didn't train its managers to see that an applicant's ability, not his disability, is what matters."

Many of you have developed training programs for your managers and employees regarding how to avoid sexual harassment. Many companies, including large and sophisticated employers such as Wal-Mart, however, often forget that to avoid unnecessary claims and litigation, you also have to train employees on avoiding discrimination based on disability, race, age, religion, pregnancy, and other grounds forbidden by law. That includes harassment based on any prohibited criteria and retaliation for asserting rights under federal or state law. In the employment arena, an ounce of prevention is often worth several pounds of cure.

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Questions about this article can be directed to the author at jvering@armstrongteasdale.com.

Copyright 2008 M. Lee Smith Publishers LLC. MISSOURI EMPLOYMENT LAW LETTER. MISSOURI EMPLOYMENT LAW LETTER is intended for general information purposes only and does not constitute legal advice. The reader should consult qualified legal counsel to determine how laws apply to specific situations.