It’s up to you to prove applicant is ‘Direct threat’ to safety — Business Management Daily: Free Reports on Human Resources, Employment Law, Office Management, Office Communication, Office Technology and Small Business Tax Business Management Daily

It’s up to you to prove applicant is ‘Direct threat’ to safety

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You can legally reject job applicants who have physical or mental limitations if they would pose a direct threat to their own safety or the safety of customers or co-workers. The ADA makes that clear.

What isn’t clear is what’s considered a “direct threat.” The law says it’s up to you to prove a person would be such a threat, and you first must consider possible accommodations that would alleviate the threat.

For example: Say a call-center rep wants to bring her Seeing Eye dog to work. You’d be hard-pressed to argue that the dog represents a threat if there’s a convenient place for it to rest out of the way. But if a hemophiliac wants to work as a prep chef, the danger becomes pretty clear.

Bottom line: Perform an individual evaluation of each situation. If a disabled employee applies for a position, you’ll have to look at the claimed disability and any possible accommodations before saying “no” because you think he’s a direct threat.

Recent case: Steven Bradley, whose mobility is impaired by cerebral palsy, applied for a Wal-Mart greeter/cashier job. Bradley gets around by using either a wheelchair or crutches, but he prefers crutches.

Wal-Mart rejected his application, claiming the crutches took up a lot of room and might be an obstacle to customers, and that Bradley might trip over product displays.

While a lower court sided with Wal-Mart, the 8th Circuit Court of Appeals reinstated Bradley’s lawsuit. It said the burden was on Wal-Mart to show Bradley was a direct threat, and the retailer should have considered whether he could safely work from his wheelchair if it thought the crutches too cumbersome or hazardous. It ordered a jury trial. (EEOC v. Wal- Mart Stores, No. 06-1593, 8th Cir., 2007)  

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