Was a job applicant with cerebral palsy qualified to perform the essential functions of a Wal-Mart job? Was Wal-Mart’s reason for not hiring him a pretext to discriminate? Those were the questions before the Eighth Circuit in EEOC v. Wal-Mart Stores.

THE CASE ARISES

An applicant’s cerebral palsy limited his dexterity and forced him to use forearm crutches for short-distance walks and a wheelchair for longer distances. He had difficulty standing for more than 10 or 15 minutes. But he had no trouble performing daily living tasks and could lift heavy objects — even from his wheelchair.

When he applied for a Wal-Mart greeter position, he marked his availability for weekends as “negotiable.” WalMart declined to hire him. He wasn’t hired again a few months later when he applied for a sales position in any department and indicated a willingness to work weekends. The EEOC sued on his behalf for discrimination under the Americans with Disabilities Act (ADA).

Wal-Mart’s personnel manager testified that the “main reason” for not hiring him was because he had failed to list on his application short-term jobs that she knew he had held, including working at a gas station and as a police dispatcher.

THE THREE-PRONG TEST

Under the burden-shifting analysis, to establish a discrimination case, applicants must meet a three-prong test. They must show that they:

1. Have an ADA-defined disability,
2. Were qualified to perform a job’s essential functions — with or without reasonable accommodations, and
3. Suffered an adverse employment action because of their disabilities.

Neither side disputed that the applicant had met the first and third prongs, but Wal-Mart’s expert testified that he didn’t meet the second prong because he wasn’t qualified to perform either job’s essential functions.

The EEOC’s expert witness testified that the applicant could perform the essential functions if given reasonable accommodations. Nevertheless, the trial court found that the applicant wasn’t qualified to perform the jobs’ essential functions and ruled for Wal-Mart without a trial.

ESSENTIAL JOB FUNCTIONS

First, the Eighth Circuit noted that, to determine whether plaintiffs are qualified to perform essential job functions, courts first consider whether they possess the requisite skills, education, certification or experience.

Second, courts consider whether they can perform the essential functions of the job despite their impairments either with or without reasonable accommodation. When employees can’t perform the essential functions of a job without an accommodation, they need show only that a reasonable accommodation is possible.

The Eighth Circuit found that the applicant possessed the required skill, education and experience for the positions, and that a reasonable accommodation would enable him to perform the jobs’ essential functions.

THE SHIFTING BURDEN

Then the burden shifted to Wal-Mart to show that it was unable to accommodate the applicant. Its expert focused on his limitations when using his crutches, not when using a wheelchair. So the court held that Wal-Mart offered no evidence that he couldn’t perform the essential functions of the positions and that the EEOC had established a prima facie discrimination case.

The burden then shifted back to Wal-Mart to produce a legitimate nondiscriminatory reason for its adverse employment action. It advanced several reasons for not hiring the applicant, mainly focusing on his job history and limited availability. The burden then shifted to the EEOC to demonstrate that these reasons were pretextual.

THE PERSONNEL MANAGER TESTIFIES

First, as to the applicant’s job history, the personnel manager conceded that she didn’t know whether he had worked at a gas station before or after she declined to hire him. For this and other reasons, the court held that a reasonable jury could find — based on her testimony — that not hiring him based on his job history was pretextual.

Second, a reasonable jury could conclude that the applicant’s lack of availability hadn’t actually motivated Wal-Mart’s decision. The personnel manager admitted that she had considered both applications in determining whether to hire him for the second job. And she conceded that she would hire him based solely on the availability he listed on his second application.

The Eighth Circuit held that, because the EEOC had provided sufficient evidence that Wal-Mart’s stated reasons for not hiring him were pretextual, the trial court had erred in ruling for Wal-Mart without a trial.

AN INTERACTIVE PROCESS

Obviously, savvy employers will avoid making assumptions about what a disabled employee is capable of doing. Furthermore, the ADA requires employers to engage in an interactive process with employees to determine whether a reasonable accommodation is possible. The employer here should have explored the applicant’s abilities more carefully.