Q. When a job applicant took a post-offer physical, he learned he has hepatitis C. The position he is seeking at our oil refinery would expose him to chemicals that could be harmful to his liver. If we refuse to hire him and he alleges disability discrimination, will we be able to utilize the “direct threat” defense?
A. The availability of the “direct threat” defense depends on the circumstances and jurisdiction. The ADA allows employers to require that an individual doesn’t pose a “direct threat” to the health and safety of other individuals in the workplace. However, the statute doesn’t specifically include a threat to one’s self.
By not including “threat to self” in the ADA, Congress may have intended to give disabled people the opportunity to decide for themselves what risks they’re willing to assume in the workplace.
Nonetheless, the EEOC has issued guidance that recognizes “threat to self” as an employer defense. The 5th Circuit Court of Appeals (which hears cases from Texas) has not specifically ruled on this issue.
If your company elects to consider this defense, determining whether a direct threat exists will be based on an individualized assessment of the applicant’s present ability to safely perform the essential functions of the job.
Factors to consider in making this assessment include:
- The duration of the risk
- The nature and severity of the potential harm
- The likelihood that the potential harm will occur
- The imminence of the potential harm.
Other factors may include input from the individual with the disability, the experience of this individual in previous jobs and a medical determination regarding the threat posed by the condition.
The final assessment must also consider any reasonable accommodations that may reduce or eliminate the threat.