4.7 Defenses

• Library: Employment Law in Virginia (Virginia CLE) (2020 Ed.)

4.7 DEFENSES

4.701 Neutral Qualification Standards. Neutral qualification standards, tests, or selection criteria that have a tendency to screen out individuals with disabilities are nevertheless acceptable if they are job-related and consistent with business necessity, and if the deficiency addressed by the standards, tests, or selection criteria cannot be remedied by reasonable accommodation. ²⁵⁷

4.702 Risk to Health or Safety of Others. An employer may require that an individual not pose a "direct threat" to the health or safety of others in the workplace. ²⁵⁸ "The ADA does not protect employees who make terroristic threats against the lives of their fellow employees—even if those threats are the unfortunate byproduct of the employee's disabling mental illness." ²⁵⁹ Moreover, employers may consider the risk an employee or applicant's disability "poses to himself in determining whether he is qualified for a job." ²⁶⁰ A direct threat is defined as a "significant risk to the health or safety of

[Page 206]

others that cannot be eliminated by reasonable accommodation." ²⁶¹ The "direct threat" or "significant risk" test requires consideration of several factors, including the nature, duration, and severity of the risk as well as the probability that the potential injury will occur. ²⁶² The EEOC has expanded this standard to permit an employer to include a qualification that the employee not pose a direct threat to his or her own health or safety. ²⁶³ The conclusion that the employee poses a direct threat must be reasonable and based on current medical or other knowledge. ²⁶⁴ Although the statute is unclear on

[Page 207]

which party bears the burden of proving a direct threat, it appears that the burden of establishing that an employee presented a direct threat of harm to others is upon the employer. ²⁶⁵

4.703 Undue Hardship. Employers may defend a charge of discrimination by showing that a requested accommodation would impose an undue hardship by disrupting the operation of the employer's business. ²⁶⁶

4.704 Conflicting Federal Laws. Employers may defend a charge of discrimination by showing that the challenged action is required by another federal law or regulation or by showing that another federal law or regulation prohibits an action, including provision of an accommodation, that would otherwise be required by the ADA. ²⁶⁷ In Holmes v. General Dynamics, an employer moved for summary judgment on an employee's failure to accommodate claim, arguing that 1) the employee could not wear protective footwear required by OSHA regulations and was therefore not "qualified" to perform the essential functions of the position, and 2) that the proposed accommodation of allowing the employee to wear tennis shoes was unreasonable. ²⁶⁸ The Western District of Virginia granted the employer's motion for summary judgment, ruling that "when an article of clothing is an 'essential safety requirement' and the plaintiff cannot wear that article of

[Page 208]

clothing because of a disability, that individual is not qualified for the position." ²⁶⁹

4.705 Transitory and Minor Impairment Is a Defense to a Claim of "Regarded as" Having an Impairment. It may be a defense to a charge of discrimination by an individual claiming coverage under the "regarded as" prong of the definition of disability that the impairment is (in the case of an actual impairment) or would be (in the case of a perceived impairment) "transitory and minor." ²⁷⁰ To establish this defense, a covered entity must demonstrate that the impairment is both "transitory" and "minor." Whether the impairment at issue is or would be "transitory and minor" is to be determined objectively. A covered entity may not defeat "regarded as" coverage of an individual simply by demonstrating that it subjectively believed the impairment was transitory and minor; rather, the covered entity must demonstrate that the impairment is (in the case of an actual impairment) or would be (in the case of a perceived...