Here’s your annual reminder not to misjudge and stereotype when employees with disabilities may be a “direct threat” to others.


You’re not a doctor.

(Unless you’re a doctor.)

So don’t act like one when deciding which of your employees may be a direct threat to others at work.

(Unless you like defending Americans with Disabilities Act claims).

Here’s an example.

Last week, the U.S. Equal Employment Opportunity Commission announced (here) that an employer agreed to pay $100,000 to a former general manager and furnish other relief to settle a disability discrimination lawsuit.

In the lawsuit, the EEOC alleged that the general manager told his direct supervisor that he needed time off to treat in the hospital for depression. Two days later — the same day the general manager left the hospital — his supervisor told him he was fired because the company feared he might hurt others.

The EEOC further alleged that the company “failed to conduct an individualized assessment of the general manager’s ability to perform the essential functions of his job with or without reasonable accommodation at the time of discharge.” The potential ADA liability cost the company ten bands to settle. Plus, it must adopt new ADA policies and train HR and others.

I’m not saying that an employer should ignore behavior that could reasonably jeopardize workplace safety. But, there’s a right way to go about it instead of acting on irrational fears and stereotypes regarding an employee with a disability, like depression.

According to the EEOC’s technical assistance manual, “an employer may require as a qualification standard that an individual not pose a ‘direct threat’ to the health or safety of the individual or others, if this standard is applied to all applicants for a particular job.” The ADA requirements for establishing a direct threat are “specific and stringent.”

The employer must be prepared to show:

  • significant risk of substantial harm;
  • the specific risk must be identified;
  • it must be a current risk, not one that is speculative or remote;
  • the assessment of risk must be based on objective medical or other factual evidence regarding a particular individual; and
  • even if a genuine significant risk of substantial harm exists, the employer must consider whether the risk can be eliminated or reduced below the level of a “direct threat” by reasonable accommodation.

One of the EEOC’s examples involves a person with epilepsy who has lost consciousness during seizures within the past year. That individual might seriously endanger her own life and the lives of others if employed as a bus driver. But this person would not pose a severe threat of harm if employed in a clerical job.

These situations are very case-specific and susceptible to missteps if not examined granularly. Therefore, do not hesitate to involve outside counsel — I know a guy — should the situation arise.


“Doing What’s Right – Not Just What’s Legal”
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