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Abstract

One of the most important issues under the Americans with Disabilities Act (ADA) is the appropriate standard for evaluating Title I employment disability discrimination cases where the employer argues that the employee has a medical condition that poses too much of a safety risk for the employee to work in a particular position. This is called the “direct threat” concept. In general, this permits an employer to discriminate against an employee on the basis of disability if the employee poses 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.” The federal courts of appeals are split on whether direct threat under Title I of the ADA is an affirmative defense that the employer must prove, or, alternatively, whether a qualified employee with a disability must prove that he or she can safely perform all essential job functions and is not a direct threat.

This Article advocates for the treatment of the direct threat concept as an affirmative defense that the employer must prove. This Article further explains that proof of this defense does not require the employer to prove that its direct threat determination is “correct.” Instead, the law requires the employer to prove that its direct threat determination was “objectively reasonable.” Objective reasonableness often depends on the procedures that the employer uses to come to this conclusion. This Article also explains how the employer should take certain steps to better demonstrate that its direct threat determination was objectively reasonable. Finally, this Article explains how to apply the objective reasonableness standard when the employer is faced with conflicting medical opinions from qualified medical providers about whether an employee poses a direct threat in the workplace. The insights from the Article are applied to the summary judgment procedure and jury instructions in direct threat cases. In particular, it is hoped that this Article will help to reshape jury charges in direct threat cases.

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