The Americans with Disabilities Act prohibits employers from discriminating against a qualified person with a disability, or refusing to provide that person with a reasonable accommodation that would allow them to perform the essential functions of their job. However, the ADA provides an affirmative defense when an employer can demonstrate that the employee presents a direct threat of harm to themselves, co-workers or third parties.

For example, an employee with epilepsy who works with heavy machinery may be able to perform the job. The employer can assert the direct threat defense if the employee’s condition results in frequent, uncontrollable seizures that could result in the employee coming into contact with the machinery. The defense is affirmative, meaning that the employer has the burden of proof when asserting it.

Earlier this month, the Tenth Circuit Court of Appeals held that the employer’s burden of proving direct threat does not include showing that an actual threat existed, only that it reasonably believed in the existence of such threat. In EEOC v. Beverage Distributors Co., the plaintiff’s job with the defendant was eliminated, but he applied for and was given a conditional offer for a different job, in the facility’s warehouse. In the course of a pre-transfer medical screening, the employer learned that the plaintiff was legally blind. It withdrew the job offer after concluding that it could not reasonably accommodate the plaintiff’s condition due to dangers presented in the warehouse environment due to his limited vision. The EEOC sued on behalf of the employee, alleging disability discrimination.

The trial court instructed the jury that in order to prevail on its direct threat defense the employer must prove that placing the employee in the job would have resulted in an actual threat of harm. On appeal, the Tenth Circuit disagreed, reversing a jury verdict for the EEOC. In its opinion, the court stated the employer prevails on the defense if it can demonstrate a subjective, reasonable belief that placing the disabled person in the job would result in a direct threat of harm.

This difference is important because it avoids the need for employers to retain experts during the accommodation process to prove the objective existence of the threat. A reasonable belief in such harm is sufficient. This case does not mean that the direct threat defense is easy to prove. In addition to reasonableness, the employer must show that the threat was direct, meaning a belief that it was substantially likely to occur, and not a speculative or low-risk possibility.