Chapter § 3-15 § 1630.15. Defenses

• Jurisdiction: United States

3-15 § 1630.15. Defenses

Defenses to an allegation of discrimination under this part may include, but are not limited to, the following:

(a) Disparate treatment charges. It may be a defense to a charge of disparate treatment brought under §§ 1630.4 through 1630.8 and 1630.11 through 1630.12 that the challenged action is justified by a legitimate, nondiscriminatory reason.

(b) Charges of discriminatory application of selection criteria—

(1) In general. It may be a defense to a charge of discrimination, as described in § 1630.10, that an alleged application of qualification standards, tests, or selection criteria that screens out or tends to screen out or otherwise denies a job or benefit to an individual with a disability has been shown to be job-related and consistent with business necessity, and such performance cannot be accomplished with reasonable accommodation, as required in this part.
(2) Direct threat as a qualification standard. The term "qualification standard" may include a requirement that an individual shall not pose a direct threat to the health or safety of the individual or others in the workplace. (See § 1630.2(r) defining direct threat.)

(c) Other disparate impact charges. It may be a defense to a charge of discrimination brought under this part that a uniformly applied standard, criterion, or policy has a disparate impact on an individual with a disability or a class of individuals with disabilities that the challenged standard, criterion or policy has been shown to be job-related and consistent with business necessity, and such performance cannot be accomplished with reasonable accommodation, as required in this part.

(d) Charges of not making reasonable accommodation. It may be a defense to a charge of discrimination, as described in § 1630.9, that a requested or necessary accommodation would impose an undue hardship on the operation of the covered entity's business.

(e) Conflict with other federal laws. It may be a defense to a charge of discrimination under this part that a challenged action is required or necessitated by another Federal law or regulation, or that another Federal law or regulation prohibits an action (including the provision of a particular reasonable accommodation) that would otherwise be required by this part.

(f) Claims based on transitory and minor impairments under the "regarded as" prong. 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." 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 impairment) both transitory and minor. For purposes of this section, "transitory" is defined as lasting or expected to last six months or less.

3-15:1 Commentary

3-15:1.1 An Employee Would Create a "Direct Threat" to Workplace Safety

An important case relating to jury charges and direct threat came out of the Tenth Circuit in 2015.

• EEOC v. Beverage Distributors Comp., 780 F.3d 1018 (10th Cir. 2015) (jury verdict set aside when jury instructed that defendant had to prove that employee posed a direct threat when its burden was only to show that it had reasonably believed the job in question would entail a direct threat; thus proof of an actual threat is unnecessary).

But keep in mind that the reasonable belief must be based on medical or other objective evidence.

• Stragapede v. City of Evanston, No. 16-1344, 2017 U.S. App. LEXIS 13868 (7th Cir. July 31, 2017) (strongly rejecting employer's argument that it does not matter whether the employee posed a direct threat to health or safety and that it is enough that the employer thought that the employee was a direct threat).

Various issues arise in asserting this defense. Recall that the threat includes possible harm to the employee.

• Hamilton v. Ortho Clinical Diagnostics, No. 1:13CV59, 2014 WL 2968597 (E.D. Ark. July 1, 2014) (summary judgment denied on defense where employer claimed that employee said he would violate his lifting restriction and not seek help, but employee claimed otherwise).

And recall the language about a reasonably considered decision. A recent case addresses this issue.

• Nevitt v. U.S. Steel Corp., 18 F. Supp. 3d 1322 (N.D. Ala. 2014) (collecting cases and noting that merely relying on a physician's opinion will not insulate an employer's decision from attack, as when a physician relies upon a stereotype of the abilities of double amputees; but court finds that physician did not make a stereotypical assumption, but rather a considered evaluation; in an important note for employers the court held that a considered decision was made despite certain tests not being run, and further holds that the standard in the regulations can be satisfied even if the ultimate determination could be challenged as incorrect).

While it is better practice to plead "direct defense" as an affirmative defense, the Fifth Circuit has held that a more general pleading is sufficient.

• Bergeron v. City of Baton Rouge, 31 F. App'x 158 (5th Cir. 2001) (direct threat defense preserved by employer who only pleaded that plaintiff was not "otherwise qualified"; court holds that "direct threat" defense is encompassed within the "otherwise qualified" inquiry).

In determining whether an employee poses a direct threat to herself or others, an individualized assessment must be made.

• Kapche v. City of San Antonio, 176 F.3d 840 (5th Cir. 1999) (rejecting per se determination that

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