The Americans with Disabilities Act (ADA) prohibits employment discrimination on the basis of disability. The ADA also requires employers to reasonably accommodate disabled individuals who are qualified for a position. However, the ADA recognizes a “direct threat” defense for employers who have been sued for disability discrimination.

A “direct threat” involves a “significant risk of substantial harm to the health or safety of the [employee] or others that cannot be eliminated or reduced by reasonable accommodation.” 29 CFR sec. 1630.2(r). If an employer can prove a disabled person poses a direct threat to themselves or others, they are not required to hire or to continue to employ the individual. 29 CFR sec. 1630.15(b)(2). For some time there has been uncertainty on exactly what an employer must establish in order to use the “direct threat” defense in ADA discrimination claims. A recent Tenth Circuit Court of Appeals decision that applies to Oklahoma employers provides valuable guidance.

Warehouse job for blind employee

Michael Sungaila was legally blind and worked for Beverage Distributors Company. When his original job was eliminated, Beverage Distributors offered Sungaila another, higher-paying position in its warehouse, contingent on him passing a physical examination. Sungaila passed the physical; however, the examining physician reported to Beverage Distributors that he needed workplace accommodations “to mitigate the risks from [Sungaila’s] impaired vision.” Beverage Distributors determined it could not reasonably accommodate Sungaila as recommended by the physician, and it rescinded the offer of the warehouse job. Sungaila found a lower-paying job with another company.

You can guess what happened next. Sungaila filed a charge of disability discrimination with the Equal Employment Opportunity Commission (EEOC). The EEOC sued Beverage Distributors for violating the ADA when it rescinded its offer of the warehouse job to Sungaila. Beverage Distributors argued that it was entitled to rescind its offer because Sungaila’s impaired vision was a direct threat to his safety and the safety of co-employees. That’s when the appeals court weighed in to explain what employers must prove to use the direct threat defense.

What is a “direct threat” under the ADA?

The court explained that employers like Beverage Distributors are not required to prove Sungaila actually posed a direct threat of substantial harm if he had been permitted to work in the warehouse. The focus should be on the employer’s thought process and access to information. The question to be decided was whether the employer’s decision was “objectively reasonable.” In other words, to defeat the EEOC’s disability lawsuit, Beverage Distributors was required to prove under the circumstances it “reasonably determined that Sungaila posed a direct threat.”

It’s still no cakewalk

Defending ADA disability claims on the basis of “direct threat” can still be an uphill climb for employers. At least with this federal court of appeals decision, employers are not required to prove an actual threat exists. The employer can use the defense, provided it can demonstrate it reasonably determined such a danger exists.

• EEOC v. Beverage Distributors Co., LLC., No. 14-1012 (10th Cir. 3/16/1