Using the “Direct Threat” Defense to Withdraw an Offer of Hire to a Person with a Disability

An employer may assert a “direct threat” defense when making a determination not to hire an applicant with a disability when the employer believes that the job applicant, if hired, will pose a significant risk to the health or safety to self and/or others that could not be eliminated by reasonable accommodation. The term “disability” is defined under the ADA, “with respect to an individual,” as: “(A) a physical or mental impairment that substantially limits one or more major life activities of such individual; (B) a record of such impairment; or (C) being regarded as having such an impairment….” 42 U.S.C. § 12102(1).

When an employer makes a “direct threat” determination, the employer must be prepared to show existence of genuine issues of material fact regarding whether the employer meaningfully assessed the job applicant’s ability to perform his/her job safely based on the best available objective evidence and reasonably concluded that the job applicant posed a “direct threat”. The WorkSaver Physical Abilities Test (PAT) provides such objective evidence for employers. This article further clarifies how a correctly administered PAT is so valuable to employers when a “direct threat” is determined to exist and a job offer needs to be withdrawn due to a lack of reasonable accommodations.

A direct threat defense must be `based on a reasonable medical judgment that relies on the most current medical knowledge and/or the best available objective evidence,’ and upon an expressly `individualized assessment of the individual’s present ability to safely perform the essential functions of the job.’ Id. (quoting Chevron U.S.A., Inc. v. Echazabal, 536 U.S. 73, 86, 122 S.Ct. 2045, 153 L.Ed.2d 82 (2002)) (quoting 29 C.F.R. § 1630.2(r)). Conversely, the direct threat defense cannot rest merely on the employer’s categorical conclusion that an employee with a particular disability cannot safely perform a job. A correctly designed PAT as conducted by WorkSaver meets the criteria for a test that provides an individualized assessment of the individual’s ability to safely perform the essential functions of the job at the time of hire or at the time of return-to-work post injury or illness.

Under the ADA, an employer may assert as an affirmative defense qualification standards shown to be “job-related for the position in question and … consistent with business necessity.” 42 U.S.C. § 12112(b)(6). The ADA further explains this business-necessity defense as follows:

It may be a defense to a charge of discrimination under this chapter that an alleged application of qualification standards, tests, or selection criteria that screen out or tend to screen out or otherwise deny 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 by reasonable accommodation, as required under this subchapter.

To show a business necessity defense, a defendant must prove by a preponderance of the evidence that its qualification standards are:

1. uniformly applied;
2. job-related for the position in question;
3. consistent with business necessity; and
4. cannot be met by a person with plaintiff’s disability even with a reasonable accommodation.

For a qualification to be job-related, the employer must demonstrate that the qualification standard is necessary and related to the specific skills and physical requirements of the sought-after position. Similarly, for a qualification standard to be consistent with business necessity, the employer must show that it “substantially promotes the business’s needs”.

WorkSaver conducts physical demands validations of jobs for industries nationwide. The purpose of the PDV is to measure parameters of the essential functions for each job that promotes the business needs. The essential job functions identified and measured by WorkSaver are submitted to and reviewed by the employer. Once approved, the essential job functions are then translated into a WorkSaver physical ability test designed specifically for each job. Through this methodology, based on content validity, the employer can be confident that any failure of the WorkSaver PAT by a qualified person with a disability can be relied upon for a business-related direct threat defense when reasonable accommodations are not available.
For more information on WorkSaver services, please visit us at www.worksaversystems.com or call (800) 414-2174.