ADA’s ‘direct threat’ does not apply to existing qualification standard


  To pass muster under the Americans with Disabilities Act (ADA, employers that impose broad safety qualifications standards as a business necessity are not required to show that the affected employees pose a “direct threat” of harm, the 5th U.S. Circuit Court of Appeals has ruled.

  The court’s February ruling in favor of Exxon Corp. rejected the interpretation by the U.S. Equal Employment Opportunity Commission (EEOC) of the “direct threat” provisions of the ADA.

  The substance abuse policy at Exxon permanently removes any employee that has undergone substance abuse treatment from certain safety-sensitive, little supervised positions.

  Exxon adopted the policy in response to the 1989 grounding off the Alaskan coast of one of its tankers, the Exxon Valdez, that resulted in billions of dollars of liability.

  The policy affects about 10 percent of Exxon’s positions. The EEOC sued Exxon on behalf of demoted employees who underwent substance abuse treatment several decades prior to the institution of the policy.

  Exxon defended the policy as a safety measure necessary to ensure employees in positions that are not closely supervised are not relapsing into substance abuse.

  The EEOC moved for partial summary judgment, arguing that Exxon must defend the policy under the “direct threat” provisions of the ADA. The trial court granted the EEOC’s motion but, noting the difficulty of the issue, certified the matter for immediate appeal to the 5th Circuit.

  The 5th circuit began its analysis by reviewing the defenses available to employers under the ADA. The act allows employers to impose application or qualifications standards that screen out or deny benefits to persons with disabilities if the standards are job-related and consistent with business necessity.

  Qualification standards may include a requirement that individuals not pose a direct threat to the health or safety of others.

  The EEOC’s ADA Interpretive Guidance requires employers to satisfy the “direct threat” standard to show safety requirements that tend to screen out individuals with disabilities are job-related and consistent with business necessity.

  Noting that the interpretive guidance is not part of the regulations implementing the ADA, the 5th Circuit said the EEOC’s position is only valid to the extent it is reasonable and harmonizes with the plain language of the law.

  Examining the ADA itself, the court found nothing in it’s language, legislative history or case law indicating that the direct threat provision applies to safety-based qualifications applicable to all employees of a given class.

  Rather, the court said, the direct threat test applies only in those cases where employers respond to an individual employee’s supposed risk that is not addressed by an existing qualification standard.

  The court noted that the direct threat standard is not necessarily more difficult to meet than the business necessity standard, although the two require different types of proof.

  Direct threat cases focus on individual employees and the risks posed by their specific disabilities, while in business necessity cases, employers are required to justify the standard as an across-the-board requirement, the 5th Circuit explained.

EEOC v. Exxon Corp., No. 98-11356 (5th Circuit, Feb. 11,2000).