Chapter 5 - § 5.9 • WHAT DEFENSES ARE AVAILABLE?

• Jurisdiction: Colorado

§ 5.9 • WHAT DEFENSES ARE AVAILABLE?

The ADA sets forth the following defenses:

§ 5.9.1—Job Relatedness/Business Necessity

An employment qualification standard or test that screens out or tends to screen out an individual with a disability is permitted if the performance tested is job related, consistent with business necessity, and cannot be accomplished by reasonable accommodation. 42 U.S.C. § 12113(a).

§ 5.9.2—Direct Threat

A qualification standard may include the requirement that an individual not pose a "direct threat" to the health or safety of other individuals in the workplace. 42 U.S.C. § 12113(b); see, e.g., Borgialli v. Thunder Basin Coal Co., 235 F.3d 1284 (10th Cir. 2000) (a mine blaster who alleged he was perceived as disabled posed a direct threat to others when he threatened suicide and "perhaps injury to others," bore a grudge against his supervisor, and worked with explosives). The term "direct threat" means a significant risk to the health or safety of others that cannot be eliminated by reasonable accommodation. 42 U.S.C. § 12111(3).

In Chevron USA, Inc. v. Echazabal, 536 U.S. 73 (2002), the U.S. Supreme Court held that the direct threat defense includes a threat to the safety of the disabled employee, not just to others. Before excluding an individual from employment as a direct threat, an employer must demonstrate that it has made an "individualized assessment" of the employee's ability to perform the essential functions of the job, "based on a reasonable medical judgment that relies on the most current medical knowledge and/or on the best available objective evidence." 29 C.F.R. § 1630.2(r). The factors to be considered include: "(1) The duration of the risk; (2) The nature and severity of the potential harm; (3) The likelihood that the potential harm will occur; and (4) The imminence of the potential harm." Id. The employer must gather substantial information about the employee's work history and medical status, and its decision must be based upon particularized facts using the most current medical knowledge and/or the best available objective evidence. It may not simply act in reliance on the advice of its own doctors. Id.

Although direct threat is generally an affirmative defense...