Americans with Disabilities Act--Direct Threat Analysis

On February 11, 2022, the 7th Circuit affirmed an order of summary judgment in favor of an employer in a disability discrimination lawsuit under the Americans with Disabilities Act ("ADA").  Pontinen v. US Steel Corporation, No. 21-1612 (7th Cir. Feb. 11, 2022).  The employer rescinded an offer of employment after determining that the potential employee's disability--seizure disorder--posed a direct threat to himself and to others in the workplace.  The 7th Circuit concluded that summary judgment was appropriate because the undisputed evidence demonstrated that the disability was not the 'but for' cause of the rescission of the job offer. 

The ADA prohibits an employer from discriminating against a qualified individual with a disability on the basis of his or her disability, including with respect to hiring decisions.  A qualified individual is a person who can perform the essential functions of his or her job with or without reasonable accommodation.  The ADA prohibits an employer from asking a job applicant disability-related questions, unless and until it extends a provisional job offer to the applicant.  Qualifying standards that tend to screen out individuals with disabilities are impermissible under the ADA, unless they are job-related and consistent with business necessity.  Accordingly, a requirement that an individual does not pose a direct threat to the health or safety of herself or others in the workplace is permissible under the ADA, even if it tends to discriminate.

In this case, after the employer made an employment offer to the applicant, it learned of his disability, determined that the disability posed a direct threat to himself and others, and, consequently, rescinded the job offer.  The 'direct threat' is an exception under the ADA that provides a justification for an employer to take adverse job action on the basis of a disability, including rescission of a job offer, when the disability poses a danger to the health or safety of the employee or others in the workplace. 

The 7th Circuit discussed and explained the legal analysis and standards for the 'direct threat' exception.  A direct threat is a substantial risk of serious harm that cannot be eliminated or reduced through reasonable accommodation.  An individualized assessment of the employee's present ability to perform the essential functions of the job is required to make an appropriate determination.  The individualized assessment must be based on adequate and competent medical evidence.  The following factors are considered: (i) the duration of the risk; (ii) the nature and severity of the potential harm; (iii) the likelihood that the potential harm will occur; and (iv) the imminence of the potential harm.  The 7th Circuit concluded that the uncontrolled nature of the plaintiff's seizure disorder, in connection with the "safety-sensitive" position of Utility Person, which included, among other things, working with hazardous materials, created an intolerable risk that justified the employer's rescission of its offer of employment.