Academic journal article Missouri Law Review

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

Academic journal article Missouri Law Review

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

Article excerpt


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.


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. …

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