Defenses

Defenses

Employers may defend a claim of disability discrimination by demonstrating bona fide occupational qualifications, business necessity, or threats to health and safety. Factors courts will consider in determining the merits of a defense to a claim of disability discrimination include:

The duration of the risk
The nature and severity of the potential harm
The likelihood that the potential harm will occur
The imminence of the potential harm and
Relevant information about the disabled employee’s past work history

Notes About Threast to Health and Safety

Reasonable Accommodation and Hostile Conduct. In Wills v. Superior Court of Orange County, Linda Wills, who suffered from bipolar disorder, was terminated for violating her employer’s policy against verbal threats, threatening conduct and violence in the workplace. The court ruled that an employer may discipline an employee for workplace threats or violence even if the misconduct is caused by the disability. Wills was diagnosed with bipolar disorder. The conduct that prompted Wills’s termination included:

Wills threatened to add two Anaheim police department employees to her “Kill Bill” list. The two employees understood the “Kill Bill” comment as a reference to a movie in which a woman makes a list of people she plans to kill.
One of the threatened employees took the statement seriously enough to consider seeking a restraining order against Wills.
Witnesses to the event testified that they perceived Wills’s statements as threats.
The police department demanded that Wills not be assigned to their facility in the future.
Wills argued that the conduct was part of the disability and was protected by law. The employer argued that Wills violated its written policy prohibiting workplace violence and threats, and that it was able to terminate her for that reason, regardless of the cause of her conduct.

The court reviewed the EEOC Enforcement Guidance on the Americans with Disabilities Act and Psychiatric Disabilities, which states that “nothing in the ADA prevent[s] an employer from disciplining an employee for threats or violence in the workplace.” According to the EEOC, the employer must be able to show that it enforces its policy consistently and doesn’t discipline a disabled employee more harshly than other employees who do not suffer from a disability. The court also noted decisions in prior cases and agreed that the ADA does not require an employer to ignore misconduct that will endanger others, even if the misconduct results from a disability. The court clarified that its decision was limited to the narrow context of conduct that involves threats of violence. The employer in the case did not try to claim that Wills posed a direct threat, but instead argued that it had the right to terminate her for violating company policy against workplace violence.

In contrast to Wills, a federal court in Gambini v. Total Renal Care ruled that an employer was not allowed to separate an employee’s outburst and related misconduct from her disability. If a jury found that the employee’s outburst was caused by or part of the disability, then the jury could find that the employer fired the employee because of her disability. This case did not involve threats of violence but did involve profanities and throwing papers at a supervisor.

Employers that want to discipline employees for threatening conduct that may be attributed to a disability are advised to discuss the intended disciplinary measures with knowledgeable employmentcounsel.

Health Care Employees Threat to Others. In the health care industry, the court looks at a four-part test to evaluate the direct threat that a health care employee with an infectious disease poses to others:

Nature of the risk — how the disease is transmitted.
Duration of the risk — how long the individual is infectious.
Severity of the risk — what is the potential harm to third parties.
Probability that transmission will cause varying degrees of harm.

In Waddell v. Valley Forge Dental Associates, which involved an HIV-positive dental hygienist, the Eleventh Circuit Court of Appeals concluded that, although scientific evidence showed the risk of transmission to be small, the degree of harm to a patient if transmission did occur is so great as to render the employee unqualified. The U.S. Supreme Court denied review.

Direct Threat to Health or Safety of Others. Under the ADA and FEHA, you are not required to hire or retain an applicant or employee who poses a “direct threat” to the health and safety of co-workers or others. “Direct threat” means a significant risk to the health or safety of others that a reasonable accommodation cannot eliminate. You must determine if a reasonable accommodation would mitigate or eliminate the possibility of harm. You must determine that an individual with a disability will pose a direct threat to the safety of others on a case-by-case basis.You must identify specific conditions or behavior on the applicant’s or employee’s part that constitute the threat. The risk must be current, not speculative and remote. The risk must be based on reasonable medical judgment or other objective evidence, not on subjective perceptions, irrational fears or stereotypes.

Ensure that assessments of direct threat are based on current medical knowledge or other reliable evidence. Do not rely on generalized or frequently mistaken assumptions about the risks associated with certain disabilities. 1 Engage in the interactive process with the employee prior to determining that a health or safety risk exists.

Under FEHA, you can refuse to hire an applicant or you can discharge an employee if that individual cannot perform the essential duties of the job in a safe manner, even with reasonable accommodation. FEHA allows a broader defense than is allowed under the ADA. You cannot claim that a disabled individual has a condition or disease with a future risk if the condition or disease doesn’t interfere with an employee’s job performance.

Food Handling Risk. You can refuse to assign food-handling duties to employees who have a communicable or infectious disease that can be transmitted to others through the handling of food, if the risk cannot be eliminated by reasonable accommodation.The state Department of Public Health publishes its determinations of what constitutes “infectious and communicable diseases” twice a year.