You know you can’t discriminate against a qualified individual with a disability. But what if you are convinced the person’s disability would create a significant risk of harm to him or others if he’s 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 the grounds that he poses a direct threat to his own or others’ health or safety 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 isn’t easy. It must be 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 some 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 potential harm will occur in certain circumstances or work settings. Or showing that potential harm is imminent could prove challenging.
The good news is that the analysis, while difficult, need only be based on the employer’s reasonable determination. As the U.S. 10th Circuit Court of Appeals recently explained, an employer relying on the direct threat defense need not prove that the person actually posed a significant risk of substantial harm to health or safety. Instead, the standard is that the employer must have reasonably believed the job would entail a direct threat.
Michael Sungaila, who is legally blind, was selected for a job in his employer’s warehouse after his previous position was eliminated. The warehouse job was conditioned on his passing a physical, however. The doctor who performed the physical found that Sungaila would require workplace accommodations to lessen the risks from his impaired vision.
The company concluded that it couldn’t reasonably accommodate Sungaila’s condition and rescinded the job offer. Sungaila filed a discrimination claim with the Equal Employment Opportunity Commission (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 10th 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 incorrectly stated that the company had to prove that Sungaila posed a direct threat, rather than having to prove only that it reasonably believed he posed a direct threat, the court reversed the verdict against the employer. EEOC v. Beverage Distributors Co, LLC, No. 14-1012 (10th Cir., March 16, 2015).
Reasonable accommodation analysis still applies
Even after evaluating the direct threat factors listed above, you must still determine whether the potential risk of harm may be eliminated or reduced by making a reasonable workplace accommodation. That means you need to go through the required interactive process in which you discuss with the applicant or employee any accommodations that may allow him to safely perform the job. You may need to seek input from medical advisers. You should reject someone only if you cannot identify a reasonable accommodation that (1) doesn’t impose an undue hardship on your company and (2) negates or reduces the risks.
With so many factors to be analyzed and medical opinions to be obtained, it’s 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 by showing that you had a reasonable belief the employee or applicant posed a direct threat, which led to your employment decision.
Steven T. Collis is the chair of Holland & Hart LLP‘s religious institutions and First Amendment practice group and a member of the firm’s labor and employment group. He may be contacted at stcollis@hollandhart.com.