Perceived Threat

By Andy Volin

The Americans With Disabilities Act permits an employer to deny employment to a person who would create a “direct threat” to the safety of himself or others in the workplace. A company with a warehouse operation refused to place a blind employee into its warehouse, asserting this defense, and the EEOC persuaded a jury to rule against the warehouse. The Tenth Circuit just reversed the outcome, because the direct threat jury instruction was wrong. EEOC v. Beverage Distributors Co., No. 14-1012 (10th Cir. Mar.16, 2015). The jury instruction required the warehouse to prove that the employee created a direct threat and that there was no reasonable accommodation possible. That was more than the law required, according to the court. The warehouse only had to prove it had a reasonable belief that the worker would create a direct threat, not that he actually did so. That distinction could have affected the outcome, and so the case was sent back for another trial.