You know you can’t discriminate against qualified individuals with a disability. But what if you are convinced that the person’s disability would create a significant risk of harm to that person or others if allowed to perform the intended job? The “direct threat” defense may help you avoid liability for a disability discrimination claim under the Americans with Disabilities Act (ADA).  

Direct Threat Defense Defined 

An employer may reject a disabled candidate or otherwise deny a job or benefits to an individual with a disability on grounds that the individual poses a direct threat to the health or safety of either that individual or others in the workplace. A direct threat is defined to mean “a significant risk of substantial harm to the health or safety of the individual or others that cannot be eliminated or reduced by reasonable accommodation.” 

Making that determination is not easy. It must be made based on an individualized assessment of the employee’s ability to safely perform the essential functions of the job. You need to obtain information from a physician or other medical judgment that relies on the most current medical knowledge or the best available objective evidence. Factors used to determine whether an individual would pose a direct threat in the workplace include: 

  • the duration of the risk;
  • the nature and severity of the potential harm;
  • the likelihood that the potential harm will occur; and
  • the imminence of the potential harm. 

Employer’s Reasonable Belief 

Some of the direct threat factors are not easily quantified. For example, it may be difficult to determine the likelihood that a potential harm will occur in certain circumstances or work settings. Or showing that the potential harm is imminent could prove challenging. 

The good news is that this analysis, while difficult, need only be based on the employer’s reasonable determination.  As explained recently by the Tenth Circuit Court of Appeals (whose decisions apply to Colorado employers), an employer making the direct threat defense need not prove that the personactually posed a significant risk of substantial harm to the health or safety of that person or others. Instead, the standard is that the employer reasonably believed that the job would entail a direct threat. EEOC v. Beverage Distributors Co., LLCNo. 14-1012 (10th Cir. March 16, 2015). 

In this recently decided case, Michael Sungaila, an employee who was legally blind, was selected for a job in his company’s warehouse after his previous position was eliminated. His warehouse job was conditioned, however, on passing a physical. The doctor who performed Sungaila’s physical found that he would require workplace accommodations in order to lessen the risks from his impaired vision. The company concluded that it could not reasonably accommodate his condition and rescinded his job offer. Sungaila filed a discrimination claim with the EEOC, which then sued the employer on his behalf under the ADA. 

At trial, the company asserted a direct threat defense. The jury decided that Sungaila was not a direct threat and found the company liable for disability discrimination. On appeal, the Tenth Circuit overturned the verdict because the jury instructions had overstated the company’s burden of proof on the direct threat defense. Because the instructions and jury form had incorrectly stated that the company had to prove that Sungaila posed a direct threat, rather than having to prove only that it reasonably believed that Sungaila posed a direct threat, the Court reversed. 

Reasonable Accommodation Analysis Still Applies 

Even after evaluating the direct threat factors listed above, you still must determine whether the potential risk of harm may be eliminated or reduced by making a reasonable workplace accommodation. This means you need to go through the required interactive process where you discuss with the applicant/employee what accommodations may allow the individual to safely perform the job. You may need to seek input from medical advisors, as necessary. Only if you cannot identify a reasonable accommodation that (1) does not impose an undue hardship on your company and (2) negates or reduces the risks, should you reject the candidate. 

Good Documentation is Necessary 

With so many factors to be analyzed and medical opinions to be obtained, it is essential that you have good documentation to support your determinations at each step of the process. Proper evidence will be the key in helping you avoid liability based on a direct threat defense by showing that you had a reasonable belief in the direct threat that led to your employment decision