Direct Threat and Business Necessity: Understanding and Untangling Two ADA Defenses
39 Berkeley J. Emp. & Lab. L. (2018) Forthcoming
54 Pages Posted: 20 Oct 2017
Date Written: October 19, 2017
The article provides a comprehensive examination of the ADA’s direct threat and business necessity defenses. These two defenses share common attributes in terms of enabling employers to reduce workplace health and safety risks, and some courts tend to apply them as if they were interchangeable in nature. But, the two defenses are distinct in focus. The direct threat defense provides a narrow view that analyzes whether a specific individual poses a significant threat of substantial harm to safety or health. The business necessity defense, on the other hand, takes a broader view and examines whether an impairment or attribute generally correlates with unacceptable job performance. After presenting an overview of the regulatory underpinnings of these two defenses as well as the judiciary’s construction and application, this article turns to three issues on which the courts have expressed conflicting views and recommends policy-based solutions for each issue. First, the burden of proof on the direct threat issue should be borne by the employer rather than the employee. Second, employers should refrain from requiring employees to provide diagnostic information when returning from sick leave and focus less intrusively on the need for leave and the anticipated date of return. Finally, an employer policy that disqualifies individuals with a history of addiction should be permissible only if an individualized assessment supports the exclusion. These solutions appropriately focus on the reality of risks rather than on the undesirable impact of stereotypical assumptions.
Keywords: disability discrimination, ADA defenses, business necessity, direct threat
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