Most employers are aware of the prohibition against disability-based discrimination; however, in nearly all cases where an employer is suspected of discriminating against a disabled employee, they will attempt to justify their actions. There are several recognized defenses for different types of discrimination in the workplace, including disability discrimination.
One of the defenses employers use when faced with a disability discrimination claim is the assertion that an employee's disability would create a significant risk of harm, either to the employee or to others, if they were allowed to perform a particular job. This is referred to as the "direct threat" defense.
Defining Direct Threat Defense
By definition, a direct threat is "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." When used in relation to employment law, this defense may allow an employer to reject a disabled candidate, deny them a job or benefits, or otherwise restrict their opportunities in the workplace on the grounds that their presence poses a threat the health or safety of themselves or others in the workplace. The defense may seem straightforward, but determining direct threat is not a simple matter.
How is a direct threat determined?
To determine whether a direct threat exists, an employer must perform an individualized assessment of the employee's ability to safely perform his or her essential job functions. This involves obtaining relevant information from a medical professional based on current medical standards or the best objective evidence. Various factors can determine whether an employee's disability would pose a direct threat in the workplace.
The following factors must be analyzed on a case by case basis:
- The duration of the potential risk
- The severity and nature of such harm
- The likelihood that such harm will occur
- The imminence of potential harm
Actions May Be Based on the Employer's Reasonable Determination
The defense is even less favorable to the employee because the employer need only show that they had a reasonable belief that the disability posed a threat of harm. This caveat makes it easier for the employer to prove the defense, as many of the factors involved in a defense are not easy to quantify. For example, demonstrating the likelihood that harm could potentially occur in certain circumstances, or that potential harm is imminent, could prove very challenging.
In other words, an employer does not have to prove that the employee or applicant actually posed a significant risk of substantial harm to the health or safety of that person or others; instead, the employer must demonstrate that they reasonably believed the job would pose a threat.
The Reasonable Accommodation Analysis Still Applies
The good news is, the employer must still determine whether the potential risk of harm they believe exists could be reduced or eliminated by a reasonable workplace accommodation. So, the interactive process regarding possible accommodations, required by the ADA, must still take place before the defense can successfully be asserted.
If you feel you have been the victim of discrimination, or if you have any questions regarding your employment rights under the Americans with Disabilities Act, please contact a Birmingham employment lawyer from Michel | King . You can reach us by filling out an online form or by calling us at (205) 265-1880.