Legal E-Bulletin - November 2000

Americans with Disabilities Act and Section 504 of the Rehabilitation Act:  The Role of Direct Threat

Table of Contents

I. About "direct threat" 
II. Evaluating whether a current employee poses a direct threat 
III. Applying "direct threat" 

Review work history of individual 
Evaluate current status of individual and factor in accommodation possibilities when "direct  threat" concerns arise
Evaluate only the essential functions of the job the individual is performing 
Blanket employment safety 
Weight given each direct threat factor may be driven by type of job at issue


Specific issues: 

HIV/AIDS 
Other infectious diseases 
Epilepsy 
Threats and threatening behaviors toward others

IV. Case challenging EEOC's interpretation of "direct threat"
V. Case interpreting "direct threat" and risk to self: Echazabal v. Chevron
VI. The statute and regulations addressing "direct threat" 

I. About "Direct Threat" 
  • Both the Americans with Disabilities Act and Section 504 of the Rehabilitation Act provide that individuals with disabilities who pose a direct threat to the health and safety of themselves or others in a particular job, are not qualified for that job. 
  • "Direct threat" means that one poses a significant risk to the health or safety of themselves or others that cannot be reduced or eliminated by reasonable accommodation. 
  • The determination must be made on a case-by-case basis, considering the following factors: 

1) Duration of the risk; 
2) Nature and severity of the potential harm; 
3) Likelihood that the potential harm will occur; and 
4) Imminence of the potential harm; or 
5) Where the issue is an employee with mental or emotional disability, the employer must identify the specific behavior  creating the risk of harm.

  • An individual with a disability should not be excluded merely because of a slightly increased risk. The risk must be so significant that there is a high probability of substantial harm. 
  • Individuals should be assessed according to their present ability to safely perform the essential functions of the job. 
  • Assessments must not be based on stereotypes, myths, generalizations or conjecture about the future prognosis about certain types of disabilities. 
  • "Direct threat" is intended to be an extremely narrow exception to an individual being "qualified" for a job. 


Note: The ADA Statute and the Title I regulations define "direct threat" differently. 

  • "A direct threat to the health or safety of other individuals in the workplace" is recognized by the Statute (42 U.S.C. § 12113(b)). 
  • The regulations, drafted by the EEOC, expanded the definition of direct threat to include a threat to the employee himself as well as to others (1630.2.Definitions, & 
II. Evaluating whether a current employee poses a direct threat 
  • Consider whether the employee can perform the job without a significant risk of substantial harm. 
  • If an individual does pose a direct threat, determine whether a reasonable accommodation can be provided that will reduce or eliminate the risk. 
  • If no accommodation can be made to reduce or eliminate the risk, then explore reassignment possibilities. 
  • Employers are not required to create jobs, however, if there is a position that the individual is qualified for that is open, they should be placed there. 
III. Applying "direct threat" 

Since the passage of the ADA and 504 there have been a number of cases that have evaluated the application of direct threat to certain types of disabilities and that have explored how to weigh the factors that are part of the consideration. In the following sections we will look at different cases to see how these factors are being applied: 

Review work history of individual 

Rizzo v. Children's World Learning Centers, Inc. (15 NDLR  71) (5th Cir. 1999) 
Rizzo, an administrative aide with a hearing impairment did not pose a direct threat to the health and safety of others. 

  • The aide worked at a day care, one of her duties required her to drive students to and from school in a van provided by the daycare. 
  • Concern was expressed by a parent of one of the students that the aide's disability might prevent her from hearing a choking child while driving a van full of small children. 
  • There was no evidence in the record that the aide ever had any problems driving the van, ever had an accident, or that she was ever distracted from her driving duties. 
  • Ms. Rizzo had been performing her job safely for two years. 
  • The day care said that the aide would be distracted because she had to rely on additional mirrors placed in the van for visual clues as to the children's safety. 
  • The court found that the mirrors were not placed in the van to accommodate Rizzo, but were there so that any van driver, with or without a disability, could check on the children visually. 
  • The court found that the day care offered only speculation that she posed a threat. 
Evaluate current status of individual and factor in accommodation possibilities when "direct threat" concerns arise 

Vera L. Nunes v. Wal-mart Stores, 64 F.3d 1243 (9th Cir. 1999) 

Vera Nunes, a sales associate (a cashier) with a history of a stress-related fainting disorder was not a direct threat.  The appellate court reviewed Wal-mart's actions up until the time she was terminated and found that: 

  • Wal-Mart did not present any evidence about Nunes medical condition at the time she was terminated. 
  • The doctor testified that any risk of harm posed by Nunes was "extremely unlikely" and the likelihood that Nunes would carry something heavy over her head, faint, and drop an item onto someone else was possible, but unlikely. 
  • There was no evidence that Wal-Mart considered any at-work accommodations to reduce the risks it feared. 

Robert Dipole v. New York City Transit Authority, 999 F.Supp. 309, (ED NY 1998) 

A transit worker with diabetes did not pose a direct threat. The employer's direct threat argument was based on speculation. No  individualized assessment of the employee's condition was performed. 

At Plaintiff's pre-employment examination, the employer alleged that Plaintiff was in poor control of his diabetes and that there was a problem with his vision. Without any further information on Plaintiff's condition, Defendant placed Plaintiff on a "no-work" status. 

The Defendant, without any knowledge of whether the Plaintiff has displayed any symptoms that have and/or might affect his job performance, established these restrictions. 

Plaintiff has been a diabetic for forty years, has been in control of his condition and has never experienced any problems on the job related to his diabetes. 

The transit authority physicians never asked whether Plaintiff was having any difficulties performing his job. 

Defendant only speculated as to possible safety concerns posed by Plaintiff's condition-- no evidence was ever produced demonstrating that Plaintiff's diabetes made him incapable of performing his job responsibilities. 

Equal Employment Opportunity Commission v. Chrysler Corporation (7 NDLR  405, 917 F.Supp. 1164 (E.D. Mich. 1996) 

An employment applicant for a position of electrician who was diagnosed as having diabetes mellitus did not pose a direct threat to himself or others. 

  • Chrysler did not perform an individualized assessment on the plaintiff. 
  • The medical examination consisted of three blood sugar tests administered to him over a two to three week period. 
  • The examining doctor did not ask whether he was experiencing any symptoms currently. 
  • Chrysler based its decision on a doctor's contention that the plaintiff's condition would probably have to be controlled by medication in the future, the possibilities of complications from diabetes-- increased risk of sudden blurred or lost vision, constituting a danger to coworkers. 
Evaluate only the essential functions of the job the individual is performing. 

Hamlin v. Charter Township of Flint, 165 F.3d 426, 1999 (6th Cir.1999)

An assistant fire chief with a history of heart attack did not pose a direct threat because of his inability to engage in active firefighting duties. 
Was it essential that an assistant fire chief fulfill all of the duties of a firefighter position? 

The court held that the testimony offered did not establish as a matter of law that: 

  • There was a high probability of potential harm because of the assistant chief's physical limitations. 
  • The alleged risk was anything more than speculative or remote. 
  • The town of Flint simply relied upon its own "subjective perceptions" that all line officers in the Fire Department do nothing other than directly fight fires. 

EEOC v. City of St. Paul, 671 F.2d 1162, 1166-67 (8th Cir. 1982) 

Distinction made by the court between the "physical performance" duties of a fire chief as opposed to a firefighter. 

Blanket employment safety rules 

Motor vehicle licenses 

In 1995, the Department of Transportation (DOT) amended the highway safety regulations to allow individuals with insulin-dependent diabetes to operate noncommercial motor vehicles. As a result, courts are looking carefully at blanket rules that exclude these individuals from jobs. Recent studies and reports demonstrate that drivers with insulin-dependant diabetes pose no greater danger than do drivers without the disease and the dependency. There have also been technological improvements that have significantly improved the ability of people with diabetes to monitor blood sugar levels and prevent hypoglycemic reactions. 

Sarsycki v. United Parcel Service, 862 F. Supp. 336 (WD Ok. 1994) 

An individual with diabetes whose diabetes was under control (he had not had a hypoglycemic episode for approximately three years) did not pose a direct threat. 

  • Employers may not make blanket rules regarding qualifications, but assess each person's alleged safety risk individually. 
  • The plaintiff's doctor gave him a medical clearance, stating that he could drive safely. 
  • The court held that he was qualified to perform his job of driving vehicles weighing 10,000 pounds or less. 
  • Reasonable accommodations included food within reach, no carrying passengers or hazardous materials. 

Kapache v. City of San Antonio, 176 F.3d 840 (5th Cir. 1999) 

The 5th circuit reevaluated its former holdings that individuals with diabetes were not qualified for jobs that require driving because they pose a direct threat, in light of the Department of Transportation amending its highway safety regulations. 

  • An applicant with insulin-dependent diabetes sued the city when they refused to hire him as a police officer. 
  • The court noted that the DOT had amended its highway safety regulations so that individuals with insulin-dependent diabetes were no longer prohibited from operating noncommercial vehicles. 
  • The court also looked at evidence of technological improvements regarding the monitoring of blood sugar levels for the purpose of preventing hypoglycemic reactions. 
  • The court concluded that there was a genuine issue of material fact with respect to the safety risk posed by drivers with insulin-dependent diabetes. 

Bombreys v. City of Toledo, 849 F.Supp. 1210 (N.D.Ohio 1993) 

A candidate for a police officer was disqualified because he had insulin-dependent diabetes. 

  • The court held that a blanket disqualification of individuals with insulin-dependent diabetes violated the ADA and 504 because individualized assessment of safety risk is required. 
  • Reasonable accommodations included allowing the officer to carry food or glucose on his person or in his patrol car and to carry a pen-lite device containing an insulin injection kit. 

Stillwell v. Kansas City, Mo. Bd. of Police Commissioners, 872 F.Supp. 682 (W.D. Mo. 1995) 

An across-the-board exclusion of persons with one hand as armed security guards violates the ADA. 

Weight given each direct threat factor may be driven by type of job at issue

Robertson v. Neuromedical Center, 161 F.3d 292 (5th Cir. 1998) 

A neurologist with Attention Deficit Hyperactivity Disorder posed a direct threat to the health and safety of others in the workplace. 

  • The neurologist's short-term memory problems had already caused various mistakes to be made in patients' charts and in dispensing medicine. 
  • Most significantly, the doctor voiced his own concerns about his ability to take care of patients, stating that it was only a matter of time before he seriously hurt someone. 

Adams v. Rochester General Hospital, 977 F.Supp. 226, (D.Ct. NY 1997) 

The court found that a biomedical engineering technician was not "otherwise qualified" because he was a direct threat to the safety of patients at the hospital where he maintained equipment. 

  • The essential functions of his job were to provide operation assistance for clinical procedures and inspect, maintain, calibrate and repair hospital equipment. 
  • The equipment was used by the hospital daily to sustain and maintain patients lives. 
  • Mr. Adams was expected to perform his job responsibilities independently and carefully. 
  • Detecting a mistake was extremely difficult. 
  • During a four-month period he was cited for three separate instances of incorrectly repairing equipment used to care for hospital patients.  He said that his mistakes were because of a mental impairment. 

Specific Issues: 

HIV/AIDS 

Equal Employment Opportunity Commission v. Prevo's Family Market, Inc. 135 F.3d 1089 (6th Cir. 1998)

A produce clerk with HIV did not pose a direct threat. 

  • The medical testimony indicated that the risk of spreading the disease to co-workers is extremely small and that the risk of spreading disease to customers is negligible. 
  • The risks could be accommodated and thus minimized by the plaintiff following the same hygiene procedures he has been using, by wearing steel protective gloves and using exclusively his own set of knives. 

Chalk v. United States District Court, 840 F.2d 701 (9th Cir. 1988)  & Martinez v. School Bd., 861 F.2d 1502 (11th Cir. 1988) 

These cases involved classroom settings and casual contact.  The risk of transmission of HIV in these situations is so remote that no  "significant risk" is posed. 

Mauro v. Borgess Medical Center, 6 NDLR  420, 886 F.Supp. 1349 (WD Mich. 1995) 

A surgical technician with HIV posed a direct threat to the health or safety of others under the ADA and the Rehabilitation Act. 

The duties of a surgical technician include having to occasionally place their hands into a patient's surgical incision to provide room and visibility to the surgeon. 

A surgical technician is always exposed during surgery to the possibility of sustaining a needle stick or minor laceration and that, in fact, he had sustained two such injuries during his two years as a surgical technician. 
The court relied on the current state of medical knowledge, that; 

  • HIV is a blood-borne pathogen that can be transmitted person-to-person by contact of infected blood with an open wound of another. 
  • HIV causes AIDS, which is fatal, and for which there is no known cure. 
  • Although the risk is low, "it is not so low as to nullify the catastrophic consequences of an accident." 
  • The risk of permanent duration with lethal consequences is sufficient to show that a surgical technician with Bradley's responsibilities posed a "direct threat". 

Scoles v. Mercy Health Corporation of Southeastern Pennsylvania, 6 NDLR  17

An orthopedic surgeon with HIV posed a direct threat to the health of his patients under the ADA and Section 504. 

  • The risk of surgeon-to-patient transmission of HIV exists, and the potential harm could not be more severe. 
  • The court recognized the lack of data documenting a case of HIV transmission from a health care worker to a patient and the probability of transmission from a surgeon to a patient. 
  • However, the court recognized that a risk exists and even if "exceedingly low," it looked at the duration and severity of the risk. 
  • Current medical knowledge indicates that once AIDS develops, the disease will most likely cause death.
Other Infectious Diseases 

Individuals with infectious or communicable diseases that can be transmitted through the handling of food, where the risk of transmission cannot be eliminated by the provision of reasonable accommodations may not be qualified for food handling positions. 

  • The Secretary of the Department of Health and Human Services issues a list of the diseases that can be transferred through food handling. 
  • Diseases that are not transmitted by casual contact (i.e. AIDS) will not fall into this exception. 
Epilepsy 

Carefully review the degree to which it is controlled. 

Mark Anthony Moses v. American Nonwovens, Inc., 97 F.3d 446 (11th Cir.1996) 

The court found that a product inspector with epilepsy posed a direct threat that could not be accommodated. 

The employee's medication was not controlling his condition. 

The employee was unable to demonstrate he was not a "direct threat," or that reasonable accommodation was possible. 

The employee, Mark Moses did not deny that there was a significant risk that if he had continued working at American, he would have had seizures on the job. 

Each of Moses' assigned tasks presented grave risks to an employee with a seizure disorder. 

As a product inspector, Moses sat on a platform above fast-moving press rollers. 

As a web operator, he sat underneath a conveyer belt with in-running pinch-points.

And as a Hot Splicer Assistant, he worked next to exposed machinery that reached temperatures of 350 degrees Fahrenheit. 

Moses maintained that as long as he followed instructions and worked "downstream" from the equipment, there was no risk of harm. 

Threats and threatening behaviors toward others 

Jones v. New York City Housing Authority, 8 NDLR  352, 635 N.Y.S.2d 198, (SD NY 1996) 

A maintenance mechanic engaged in a pattern of threatening and abusive behavior toward his co-workers. 

The allegedly abusive behavior occurred practically every day for eight years.  One day, there was a series of outbursts where he threatened a member of the personnel department, threatened to kill a manager and engaged in other insubordinate behaviors.  After this the Housing Authority required him to submit to a psychiatric evaluation to determine whether he was mentally fit to perform his job functions. The examining physician concluded that the mechanic was not able to return to his job, in part because he allegedly failed to cooperate in the examination. He was placed on a leave of absence. 

Layser v. Donald W. Morrison, 935 F.Supp. 562 (ED. Pa. 1995; Rapt. 1996).

The court found that a police officer that dreamed of pointing his gun to the head of his supervisor posed a direct threat. 

  • The officer was removed from patrol duty for a period of time after his psychotherapist disclosed to the employer that the officer had dreamed of pointing his gun to the head of a supervisor. 
  • The employer was able to prove that the employee posed a significant risk to others because the treating doctor called the supervisor stating that he thought that the officer might act on his dreams. 
  • The officer, requested sick leave, stated that he "should not go to work until I got better control of the stress and anger that was bothering me." 

Hyndman v. GTE Data Services, 4 A.D. Cases 182, 1994 U.S.Dist. Lexis 9522 (M.D. Fla).

An employee with a chemical imbalance alleged that he was discharged in violation of the ADA. 

The court ruled for the employer, finding that the discharge was justified by the fact that the employee brought a loaded gun to work, violating a workplace rule prohibiting employees from bringing guns to work.

In addition, the employer was not aware of the alleged disability at the time of discharge. 

Den Hartog v. Wasatch Academy, 129 F.3d 1076 (10th Cir)

This case involved a teacher who lived on campus with his son who had an emotional disability.  The son had previously threatened staff, and had a history of violent threats and behaviors that had led to hospitalization and incarceration.

The teacher was given off campus housing, but his son continued to visit the campus. After the school decided not to renew his contract, the teacher claimed it was discrimination due to his having a relative with a disability, and requested accommodation. The court held that the ADA "exempts" employers from compliance where failure to do so will present a direct threat to others in the workplace. Here the court found that the son presented such a threat to people at the campus, and further ruled that the school's action was acceptable under ADA. 

This case suggests the possibility of extension of the direct threat exemption into cases involving associates, spouses, and boyfriends/girlfriends.

IV. Case Challenging EEOC's Interpretation of "Direct Threat" 

Kohnke v. Delta Airlines, Inc. 8 NDLR 221, 932 F.Supp. 1110 (ND Ill. 1996) 

A baggage customer service agent alleged employment discrimination in violation of the ADA. The employee filed a motion to reconsider after a magistrate judge ruled that any direct threat jury instruction should refer to a direct threat to others or the employee, rather than to others only. The district court initially declined to reconsider the magistrate's ruling, but then agreed to do so. 

The employee prevailed.  The court concluded that any direct threat jury instruction must refer to a direct threat to others and not to the employee himself. Although EEOC regulations interpret the term direct threat to include a direct threat to the employee, this interpretation cannot be accepted because it is inconsistent with the language of the statute itself. 

V. Case Interpreting "Direct Threat" and Risk to Self: Echazabal v. Chevron

Echazabal v. Chevron USA, Inc., 213 F.3d 1098 (9th Cir. 2000)

The Ninth Circuit Court of Appeals here dealt with whether an employer can exclude someone from a job which poses a threat to that employee's own health and safety, but which poses no threat to the safety of others. The court held that disabled individuals should be afforded the opportunity to choose their own workplace risks, rejected the EEOC's interpretation of the ADA, and narrowly interpreted "direct threat" to hold that Chevron could not refuse to hire an employee with Hepatitis C for a position that involved exposure to chemicals that might further damage the employee's liver. The court relied on the "plain language" of the statute that speaks only to a significant risk to the health or safety of others, and the legislative history of the statute that did not address direct threat in the context of a threat to the disabled individual.

VI. The Statute and Regulations Addressing "Direct Threat"

Americans with Disabilities Act of 1990 (42 U.S.C. 12101 et seq.) 
Sec. 12111 Definitions 
As used in this subchapter... 
The term "covered entity" means an employer, employment agency, labor organization, or joint labor-management committee. 

(3) Direct threat 
The term "direct threat" means a significant risk to the health or safety of others that cannot be eliminated by reasonable accommodation. 
Sec. 12113 Defenses 
  (b) Qualification standards 
The 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... 
  (3) Construction 
Nothing in this chapter shall be construed to preempt, modify, or amend any State, county, or local law, ordinance, or regulation applicable to food handling which is designed to protect the public health from individuals who pose a significant risk to the health or safety of others, which cannot be eliminated by reasonable accommodation, pursuant to the list of infectious or communicable diseases and the modes of transmissibility published by the Secretary of Health and Human Services. 

(Pub. L. 101-336, Title I, Sec. 103, July 26, 1990, 104 Stat. 333.) 

Regulations 

1630.2. Definitions 
(r) 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..." 

1630.15. Defenses 
Defenses to an allegation of discrimination under this part may include, but are not limited to, the following... 
(2) Direct threat as a qualification standard 
The term "qualification standard" may include a requirement that an individual shall not pose a direct threat to the health or safety of the individual or others in the workplace. (See section 1630.2(r) defining direct threat). 


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