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What’s A Direct Threat Defense Under The ADA?

by | Jun 23, 2022 | Disability Discrimination, Employment Discrimination, Employment Law, Wrongful Termination |

What does the ADA protect for employees?

Best Employment Lawyer Answer: The Americans with Disabilities Act (“ADA”) makes it unlawful for employers to engage in workplace discrimination against disabled employees or applicants in all facets of employment including hiring, pay, promotion, demoting, and firing. Additionally, the ADA requires the employer to engage in an interactive process to determine and provide a reasonable accommodation to disabled employees. Under the ADA, an accommodation can be either a physical change in the work environment, such a ramp or larger screen; or it be a change in a process, such as having an interpreter during an interview or for staff meetings or allowing an employee to sit closer to a bathroom or take extra breaks. (Best Law Read: Can My Employer Rescind My ADA Accommodation?; What Are My Mental Health Rights At Work?). An accommodation is “reasonable” under ADA requirements when it does not create an undue hardship or a direct threat. (Best Law Read: What Should Employees Know About Reasonable Accommodations?).

What is considered a direct threat under the ADA?

Best Disability Discrimination Attorney Answer: The ADA defines “direct threat” as “a significant risk to the health or safety of others that cannot be eliminated by reasonable accommodation.” 42 U.S.C. § 12111(3). Federal regulations weighing in on the meaning of “direct threat,” issue, the Equal Employment Opportunity Commission (“EEOC”) provide that that direct threat “means 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.” 29 C.F.R. § 1630.2(r). The United States Supreme Court has repeatedly held that courts must conduct individualized direct threat inquiries based on the facts specific to the worker, the job requirements, the disability, and particular risks at issue.

To protect disabled individuals from discrimination based on prejudice, stereotypes, or unfounded fear, the United States Supreme Court has required an individualized direct threat inquiry that relies on the best current medical or other objective evidence. See Bragdon v. Abbott, 524 U.S. 624, ––––, 118 S.Ct. 2196, 2210, 141 L.Ed.2d 540 (1998); School Board of Nassau County, Fla. v. Arline, 480 U.S. 273, 287, 107 S.Ct. 1123, 94 L.Ed.2d 307 (1987); 29 C.F.R. § 1630.2(r). In Bragdon, the Supreme Court held that courts must view what is “reasonable in light of the available medical evidence.” Id. at 650. Thus, to “protect disabled individuals from discrimination based on prejudice, stereotypes, or unfounded fear, the Supreme Court requires an individualized direct threat inquiry based on the best current medical or other objective evidence,” and prevents reliance on the employer’s subjective belief. Nunes v. Wal-Mart Stores, Inc., 164 F.3d 1243, 1248 (9th Cir. 1999).

When evaluating whether a direct threat exists, trial courts should consider: (1) the duration of risk, (2) the nature and severity of any potential harm, (3) probability that such harm will take place, and (4) the imminence of the any such potential harm. See Arline, 480 U.S. at 287, 107 S.Ct. 1123; 29 C.F.R. § 1630.2(r).

If a trial court determines that no such direct threat risk is posed, the employer must reasonably accommodate the employee. Further, even if the court find such a risk exists, the court must still determine if the employer could provide a reasonable accommodation that would allow the employee to perform the job without such risk. If the answer is still no, then the employer’s termination and non-accommodation of the disabled employee is legally permissible. Mantolete v. Bolger, 767 F.2d 1416, 1423 (9th Cir. 1985).

What are examples of direct threat ADA evaluations?

Best Workplace Disability Accomodation Lawyer Answer:

In Mantolete, the United States Court of Appeals for the Ninth Circuit reversed the district court’s dismissal of the claims and held that “an elevated risk of injury” caused by an employee’s epilepsy was insufficient to create a direct threat in her role as a letter sorter. (Best Law Read: Best Attorney Answers: Does My Employer Have to Accommodate My Epilepsy?).

In Nunes, the employer fired a sales associate employee with syncopal fainting episodes and asserted that a direct threat affirmative defense. The Ninth District Court of Appeals again reversed the District Court’s dismissal of the case, holding:

Wal–Mart did not present any evidence about Nunes’s medical condition at the time she was terminated. The deposition testimony of Nunes’s doctor, taken two years after the termination decision was made, obviously was not available to Wal–Mart at the time Nunes was terminated. Moreover, this testimony does not support the conclusion that Nunes posed a significant risk to others. The doctor testified that any risk of harm posed by Nunes was “extremely unlikely.” Defense counsel then asked the doctor if Nunes would pose a risk to others if she carried something heavy over her head, fainted, and dropped the item onto someone else. The doctor answered that such a scenario was “possible” but “very unlikely.” Such testimony does not establish significant risk as a matter of law. At most, it raises a genuine issue of material fact as to Nunes’s risk of harm to others.

Moreover, the record contains no evidence that Wal–Mart considered any at-work accommodations to reduce the risks it feared. For example, even though Wal–Mart feared that Nunes might drop a heavy item lifted over her head, there is no evidence that Wal–Mart considered an accommodation to avoid such lifting. Given Nunes’s job duties as a cashier, such an accommodation seems feasible.

Id. at 1248.

A recent case decided by the United States District Court for the District of Kansas illustrates the opposite result. In Carter v. Union Pacific Railroad Co., 2022 WL 1909049 (D. Kan. June 3, 2022), the employee, Alfie Carter, worked as a Yardman. “It was critical that plaintiff performed his job in a manner that assured the safety and health of his coworkers, the public, and himself, especially because he was operating engines weighing about 325,000 pounds and locomotives with hazardous materials.” Id. at *2. As a result of a motorcycle accident, the employee suffered a head injury with concussion, intraparenchymal hemorrhage of the brain, and an intracranial contusion (bruising of the brain); and three fractured ribs.

On September 4, 2018., Dr. Richardson, who was neither a neurologist nor the treating physician, released Carter to return to work. At the time, Dr. Richardson still had no familiarity with the employee’s essential job functions nor the safety-critical nature of his job. Dr. Richardson testified that she had not assessed whether Carter was at risk for seizures or whether such risk would impact his ability to perform the essential functions of his job safely.

On the other hand, the employer sent the employee for an fit for duty examination and review of his medical records. (Best Law Read: When Can Employers Ask For Medical Records?). Three doctors, including a neurologist, concluded that the employee did pose a direct threat and opined that he could not safely do the job for a period of five years. In dismissing the employee’s case, the District Court held:

But here, in the current case, plaintiff hasn’t adduced any evidence similar to the four types of evidence amassed by Nall’s plaintiff. For instance, the Nall plaintiff offered medical opinions by four doctors who concluded that “he could perform his job duties safely.” Id. at 345. In contrast, here, plaintiff offers just the release to return-to-work without restrictions from his treating physician, Dr. Richardson. But Dr. Richardson isn’t a neurologist and does not specialize in treating diseases of the brain. Doc. 60-10 at 3 (Richardson Dep. 9:25–10:5, 12:1– 22). Dr. Richardson testified that she wasn’t familiar with the essential job functions of plaintiff’s job or its safety-critical nature. Id. at 6–7 (Richardson Dep. 24:15–25:19). She knew plaintiff worked for defendant in the Yard, but she never reviewed the job description for defendant’s position. Id. at 4–5 (Richardson Dep. 16:12–18:16). Also, she never conducted an assessment to determine if plaintiff was at risk for seizures, or whether his risk for future seizures would affect his ability to perform the essential functions of his job safely. Id. Thus, no reasonable juror could conclude from Dr. Richardson’s work release that plaintiff was qualified to perform the essential functions of his job safely. See Revels v. Lucent Techs., Inc., 60 F. App’x 740, 745–46 (10th Cir. 2003) (affirming summary judgment against disability discrimination claim when plaintiff’s medical release didn’t provide an adequate explanation about plaintiff’s ability to return to work); Krehbiel, 2020 WL 5503363, at *10 (explaining that the Krehbiel facts differed from Nall because “although [p]laintiff’s personal physician opined that [p]laintiff could return to work, her determination rested on incomplete information because it relied on [p]laintiff’s self-reporting” and physician “had no knowledge of [p]laintiff’s specific job duties” while in “contrast, there are two doctors who issued work restrictions based on a review of [p]laintiff’s medical history, determining that work restrictions were necessary due to the risk of harm to [p]laintiff or others, with knowledge of [p]laintiff’s job duties”).

[Further], plaintiff testified that he believes he can perform the essential functions of his job. Also, he testified that he recently has operated heavy machinery and still holds a valid driver’s license. But, plaintiff offers no evidence showing that the ability to operate heavy machinery on some undefined number of occasions and drive a personal vehicle means he can perform the essential functions of the Yardman position—which includes the job duty of operating by remote control trains weighing some 325,000 pounds and locomotives containing hazardous materials. None of plaintiff’s “self-serving testimony” about his ability to perform essential functions of the job presents a genuine factual issue whether he is qualified. See Mason v. Avaya Commc’ns, Inc., 357 F.3d 1114, 1121 (10th Cir. 2004) (holding that plaintiff’s “own testimony that she could perform the essential functions of” her job was “self-serving” and “insufficient…to create a ‘genuine’ issue of material fact concerning the essential functions of the [job]”).

Id. at *17-18.

The takeaway from Carter is that an employee must be able to present expert medical testimony specific to the facts and requirements of the job from a qualified expert. Relying on a general practitioner or a work release note simply will not cut it. This further emphasizes the importance of getting yourself the very best employment law attorney that you can find in order to make sure that you have a lawyer – or better yet fully resourced legal team – that knows exactly the type of evidence that is needed to put your case together.

How do I sue my former employer for wrongfully firing me because of my disability?

Best Wrongful Termination Lawyer Answer: As you can see, each case of disability discrimination, failure to accommodate, and wrongful termination presents distinctly different issues and requirements. Your best course of action to hire a law firm that has the experience and focus in employment law as well as the resources to prosecute your case. If you are disabled or your employer perceives you as being disabled; and you have been fired, wrongfully terminated, discriminated against, demoted, wrongfully disciplined, or even think that you might need a disability discrimination lawyer, then call the right attorney to schedule a free and confidential consultation. (Read: What is the Spitz No Fee Guarantee?). Make a call right now to our lawyers in Cleveland, Columbus, Toledo, Cincinnati, Youngstown, Raleigh, and Detroit to get help now. Spitz, The Employee’s Law Firm and its attorneys are experienced and dedicated to protecting disabled employees’ rights under ADA and Ohio employment law.


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