12.11 ADA-Defenses-Direct Threat
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FAQ
The direct threat defense is a narrow exception to the general rule that employers may not discriminate based on disability. An employer's determination that an employee poses a direct threat cannot be based on fears, misconceptions, or stereotypes about the employee's disability.
Significant risk of substantial harm For an individual with a disability to be considered a direct threat, the risk of harm must be significantly likely to occur AND the amount of potential harm must be substantial.
? Direct threat is a defense that employers may raise to a charge of employment. discrimination against persons with disabilities. ? In some instances, a person's limitations may pose a direct threat to the health and safety. of others in the workplace.
On the defense side, don't forget about any affirmative defenses, such as: undue hardship; undue burden; fundamental alteration; readily achievable, etc. If a title II architectural barrier case, remember readily achievable doesn't enter into the equation.
Direct threat means a significant risk of substantial harm to the health or safety of the individual or others that cannot be eliminated or reduced by reasonable accommodation.
That term ?means a significant risk of substantial harm ? that cannot be eliminated or reduced by reasonable accommodation.? Whether an employee poses a direct threat requires an individualized assessment that is based on a reasonable medical judgment relying on the most current medical knowledge and/or on the best
Direct Threat Under the ADA. The assessment must consider: (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.
