What is a Direct Threat Under ADA Regulations?

Gina Deveney
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When it comes to the hiring process, the Americans With Disabilities Act prevents employers from discriminating against current or prospective employees afflicted with a disability. Employers must also establish reasonable accommodations for a disabled person who qualifies for a specific position. However, if reasonable accommodations cannot make the workplace environment safer for the disabled employee, employers may use the "direct threat" defense afforded to them under ADA regulations.

A direct threat involves an employer determining that a disabled person presents a considerable risk to the safety of himself and other workers. Because any reasonable accommodation would fail to mitigate such risk to a sufficient extent, the employer need not hire or continue to employ the disabled person. Nonetheless, proving a direct threat remains a slippery slope. Many employers facing discrimination claims experience uncertainty in how to establish a direct threat in actual, concrete terms.

A recent direct threat case, EEOC v. Beverage Distributors Co., LLC., may serve as a guiding precedent for employers who are wondering how to establish a disabled person's direct threat to the workplace. After terminating legally blind Michael Sungaila's initial job, Beverage Distributors Company offered him a position of higher pay in its warehouse. A physical examination, however, found that Beverage Distributors would have to accommodate for Sungaila's disabled eyesight.

The company concluded that it could not produce accommodations within reasonable limits and retracted its job offer. Sungaila then filed a discrimination charge with the Equal Employment Opportunity Commission. Beverage Distributors Company argued in court that Sungaila posed a direct threat to himself and others, and ultimately won the case when an appeals court intervened. The appeals court did not require Beverage Distributors to prove that Sungaila posed an actual direct threat but determined that the company had exercised reasonable objectivity with an adequate amount of information in making its decision to retract the job offer. Therefore, an employer's impartial thought process stands as the determining factor in deciding whether to classify a disabled person as a direct threat under ADA regulations.

In order to avoid discrimination cases, hiring managers should educate themselves about all the disabilities covered under the ADA before recruiting. Many employers think of a disabled person as someone bound to a wheelchair or lacking hearing or eyesight. In reality, however, the ADA covers any physical or mental affliction, such as a bad back or depression, that may hinder daily life activities. A company must provide accommodations unless the means to do so would cause a disturbance or unreasonable financial costs.

While hiring managers should receive training in the proper treatment of disabled workers, understanding what types of accommodation requests the ADA covers can help employers recognize when to use the direct threat defense. And thanks to EEOC v. Beverage Distributors Co., LLC., a clearer understanding of how to properly establish a direct threat in accordance with the ADA now exists.

Photo courtesy of niamwhan at FreeDigitalPhotos.net



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