This week’s topic came to my attention from Don Davis of the Noble law firm. The question is just what is the trier of fact supposed to determine when it comes to the “affirmative defense,” of direct threat? As is my usual, the blog entry is divided into several categories: history of direct threat; facts; jury instructions; court’s reasoning; and takeaways. The reader is free to focus on any or all of the sections.

I
History of Direct Threat

1. Direct threat actually comes originally from case law in a Rehabilitation Act case decided by the Supreme Court, School Board of Nassau County, Florida v. Arline, 480 U.S. 273 (1987). In that case, the United States Supreme Court held that deciding whether a teacher with tuberculosis was otherwise qualified under the Rehabilitation Act involved considering the facts based upon a reasonable medical judgment given the state of medical knowledge about: 1) the nature of the risk (how the disease is transmitted); 2) the duration of the risk (how long is the carrier is infectious); 3) the severity of the risk (what is the potential harm to third parties); and 4) the probability the disease will be transmitted and will cause varying degrees of harm. The Court goes on to note that a court normally should defer to the reasonable medical judgments of public health officials. Further, The Court also noted that a finding of otherwise qualified depends upon whether the employer could reasonably accommodate the employee in light of the medical findings.

2. Direct threat with respect to the safety of others eventually made its way into the ADA at 42 U.S.C. § 12113.

3. By the EEOC regulations, 29 C.F.R. § 1630.2, and confirmed by the United States Supreme Court in Chevron v. Echazabal, 536 U.S. 73 (2002), it was found that it was appropriate for the EEOC to extend the direct threat concept to a threat to self in addition to a threat to others.

II
Facts

A legally blind plaintiff when his position was eliminated obtained a higher-paying job in the company’s warehouse conditional upon passing a physical examination. He passed the physical, but the examining doctor said that he would require workplace accommodations to mitigate the risks from his impaired vision. The company concluded that it could not reasonably accommodate his condition and rescinded the offer of a job in the warehouse. He subsequently found a lower paying position with another company. He filed a claim with the EEOC who then brought suit. The jury found that the defendant liable for discrimination and that the plaintiff did not pose a direct threat (mitigation of damages was also an issue here but one that we will not focus on in this blog entry). The defendant then appealed.

III

The Beverage Distributors Jury Instructions

In EEOC v. Beverage Distributors Company, LLC, the 10th Circuit was faced with deciding whether the following jury instruction was reversible error:

To establish this defense, Beverage Distributors must prove both of the following by a preponderance of the evidence:
1. Mr. Sungaila’s employment in a Night Warehouse position posed a significant risk of substantial harm to the health or safety of Mr. Sungaila and/or other employees; and

2. Such a risk could not have been eliminated or reduced by reasonable accommodation. The determination that a direct threat exists must have been
based on a specific personal assessment of Mr. Sungaila’s ability to safely perform the essential functions of the job. This assessment of Mr. Sungaila’s ability must have been based on either a reasonable medical judgment that relied on medical knowledge [or best objective evidence] available at the time of assessment . . . . An employer’s subjective belief that a direct threat exists, even if maintained in good faith, is not sufficient unless it is objectively reasonable.
. . . .
3. In determining whether Beverage Distributors acted objectively reasonably when it determined that Mr. Sungaila was a direct threat, you must consider the following factors: (a) the duration of the risk; (b) the nature and severity of the potential harm; (c) the likelihood that the potential harm would occur; and (d) the imminence of the potential harm.

IV
Court’s Reasoning

1. According to the first part of the jury instruction, the defendant has to prove that the plaintiff posed a direct threat. The 10th Circuit did not believe that was accurate. That is, the defendant could avoid liability if it had reasonably believed the job would entail a direct threat and that proof of an actual threat should have been unnecessary.

Counterpoint: This reasoning probably goes too far. School Board of Nassau County Florida and Chevron v. Echazabal both focus on the term, “reasonable medical judgment.” True, under those cases, an actual threat is not necessary, but the determination that a threat exists must be based upon a reasonable medical judgment based upon the individual facts. Therefore, the question is not whether the employer’s belief is reasonable, but rather it is whether they relied upon a reasonable medical judgment in making their direct threat determination. It may be a fine line between the two concepts, but the distinction is there.

2. The second part of the instruction did not cure the error either because it never told the jury why it had to consider the reasonableness of what the defendant thought.

I believe what the 10th Circuit means by this particular reasoning is in reference to the part of the jury instruction stating, “An employer’s subjective belief that a direct threat exists, even if maintained in good faith, is not sufficient unless it is objectively reasonable.” This part of the instruction is indeed very confusing because it isn’t clear whether “objectively reasonable,” refers to whether a direct threat actually existed or whether the medical judgment itself was reasonable.

V
Takeaways:

1. When it comes to direct threat, an individualized analysis is still required.

2. The emphasis should not be on whether a direct threat actually exist or whether the employer’s judgment is reasonable. Rather, the focus should be on whether the medical judgment assessing whether a direct threat exists was a reasonable medical judgment. As such, look for a battle of medical experts.

3. Even if a direct threat exists, you still have to analyze whether a person can do the job with or without reasonable accommodations. In that respect, you might find this blog entry helpful. As a further preventive measure, engaging in the interactive process would also be helpful, particularly if you are in one of those jurisdictions where failure to engage in an interactive process is a separate cause of action.

4. It isn’t a foregone conclusion that direct threat is an affirmative defense. Certainly, the 10th (this case), Seventh, Fifth, Eighth, and Ninth Circuits all believe that it is, but that is not the case in the 11th Circuit or in the First Circuit (whether it is an affirmative defense in the First Circuit, depends upon whether Public Safety is involved).

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