Disciplining the Americans with Disabilities Act's Direct Threat Defense

Abstract

One defense to alleged discrimination under the ADA is that the plaintiff would pose a to the health or safety of others. The ADA defines a direct threat as a risk. Current direct threat determinations, attempting to operationalize significant risk, are both inconsistent and inaccurate. The result is that some disabled individuals are wrongfully excluded from the workplace and that others are mistakenly permitted to work. Numerical benchmarks would improve the consistency and accuracy of direct threat determinations. Decision makers should make significance determinations aided by statistics that provide a modulus by which to measure whether a risk is clearly significant, clearly insignificant, or somewhere in between. The EEOC should adopt explicit benchmarks, looking to the statistical benchmarks used by OSHA to serve as a guide for when a risk is sufficiently large to be considered significant. These benchmarks would result in more consistent and accurate determinations under the ADA which, in turn, would advance the statute's antidiscriminatory purpose.