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10th Cir. Rejects 'Direct Threat' Jury Instructions in ADA Case

By Casey C. Sullivan, Esq. | Last updated on

Jury instructions regarding the "direct threat" affirmative defense in an employment discrimination case required an employer to prove more than legally necessary, the Tenth Circuit ruled on Monday. An employer must only show that he had a reasonable belief that an impaired worker's job performance would pose a significant risk of substantial harm in order to avoid liability. Contrary to the district court instructions, a jury need not determine if such a threat actually existed.

The case involved a legally blind employee of Beverage Distributors Company in Colorado. The company rescinded the worker's job offer in the company's warehouse, believing that he would need reasonable accommodations under the ADA.

Focus on Perceived, Not Actual Risk

When Michael Sungaila's position with Beverage Distributors was eliminated, he applied for and was offered a higher-paying job in the company's warehouse. After passing a physical exam, the examining doctor notified the company that Sungaila would require certain accommodations. According to Beverage Distributors, they rescinded his employment offer based on the belief that his impaired vision would create a significant risk of harm that could not be reduced or eliminated with reasonable accommodations. This "direct threat" defense is an accepted affirmative defense in ADA discrimination cases.

Sungaila complained, and the EEOC brought an action against the company. At trial, the jury was instructed that Beverage Distributors must prove that Sungaila's employment posted a significant risk of harm. Those instructions ran counter to existing case law, the court ruled. Proof of actual risk is unnecessary for the affirmative defense to succeed -- an employer need only show that his or her belief that there was a significant risk was reasonable.

Clarification in the second part of the jury instructions, which explained that the threat determination must be based on an employer's reasonable personal assessment, was not enough to cure the error. Since juries could reasonably rely on the erroneous standard, the court reversed the verdict for the EEOC.

Lightening the Burden for Employers

In emphasizing that an employer need only prove that his or her belief that an employee's condition presented a direct threat was reasonable, the court reaffirmed the lighter burden facing employers asserting the affirmative defense. This should come as good news to employers evaluating the risks posed by an employee's disability.

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