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9 PJI 3.1 | Third Circuit (US)
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9 PJI 3.1 | ADA | DIRECT THREAT

In this case, [defendant] claims that it [describe employment action] [plaintiff] because [plaintiff] would have created a significant risk of substantial harm to [plaintiff] [others in the workplace].

Your verdict must be for [defendant] if [defendant] has proved both of the following by a preponderance of the evidence:

First: [Defendant] [specify actions taken with respect to plaintiff] because [plaintiff] posed a direct threat to the health or safety of [plaintiff] [others in the workplace]; and

Second: This direct threat could not be eliminated, or reduced to an acceptable level, by providing a reasonable accommodation, as I have previously defined that term for you.


A direct threat means a significant risk of substantial harm to the health or safety of the person or other persons that cannot be eliminated by reasonable accommodation. The determination that a direct threat exists must have been based on an individualized assessment of [plaintiff’s] ability to safely perform the essential functions of the job. This assessment of [plaintiff’s] ability must have been based on a reasonable medical judgment that relied on the most current medical knowledge, or the best available objective evidence, or both.

In determining whether [plaintiff] would have created a significant risk of substantial harm, you should consider the following factors:

1) How long any risk would have lasted;

2) The nature of the potential harm and how severe the harm would be if it occurred;

3) The likelihood the harm would have occurred; and

4) Whether the potential harm was imminent, that is, whether it was about to happen soon.

COMMENT This instruction is derived from 42 U.S.C. § 12111; id. § 12113; 29 C.F.R. § 1630.15 (2019); U.S. Equal Emp. Opportunity Comm’n, Interpretive Guidance on Title I of the Americans with Disabilities Act, 29 C.F.R. pt. 1630, App. 1630.2; and caselaw as discussed below.

The ADA provides an affirmative defense where accommodation of, hiring or retaining an employee would constitute a “direct threat.” 42 U.S.C. § 12113(b).46 “Direct threat” is defined as “a significant risk to the health or safety of others that cannot be eliminated by reasonable accommodation.” 42 U.S.C. § 12111(3).47 The regulations, which extend the idea of threat to encompass threats to the individual himself or herself as well as to others, see 29 C.F.R. § 1630.15(b)(2) (2019),48 provide:

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. The determination that an individual poses a “direct threat” shall be based on an individualized assessment of the individual's present ability to safely perform the essential functions of the job. This assessment shall be based on a reasonable medical judgment that relies on the most current medical knowledge and/or on the best available objective evidence. In determining whether an individual would pose a direct threat, 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.


29 C.F.R. § 1630.2(r) (2019).

The EEOC’s interpretive guidance provides further detail on the level of risk that constitutes a direct threat: “[T]he employer must determine whether a reasonable accommodation would either eliminate the risk or reduce it to an acceptable level…. An employer... is not permitted to deny an employment opportunity to an individual with a disability merely because of a slightly increased risk. The risk can only be considered when it poses a significant risk, i.e., high probability, of substantial harm; a speculative or remote risk is insufficient.” 29 C.F.R. § Pt. 1630, App. 1630.2(r) (2019).

(Last Updated July 2019)

Footnotes

46 42 U.S.C. § 12113(a) provides: “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.” Section 12113(b) specifies that “[t]he term ‘qualification standards’ may include a requirement that an individual shall not pose a direct threat to the health or safety of other individuals in the workplace.” See also Chevron U.S.A. Inc. v. Echazabal, 536 U.S. 73, 78 (2002) (terming the qualification-standards defense, including the direct-threat defense, an “affirmative defense”).
47 See Turner v. Hershey Chocolate U.S., 440 F.3d 604, 615 (3d Cir. 2006) (addressing case in which employer had required its employees to rotate among three production lines due to concerns over repetitive stress injuries, and refusing to “conclude as a matter of law” that plaintiff’s proposal that she not be required to rotate among all three lines “would pose a ‘direct threat’ to [defendant’s] employees”).
48 The Supreme Court has held that Section 1630.15(b)(2)’s extension of the concept of threat to encompass threats to the employee himself or herself does not exceed the scope of permissible rulemaking under the ADA. See Chevron U.S.A. Inc. v. Echazabal, 536 U.S. 73, 87 (2002).

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Sincerely,



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