Seventh Circuit Holds that Applicant’s Seizure Disorder is a "Direct Threat"
On February 11, 2022, the U.S. Court of Appeals for the Seventh Circuit ruled that an applicant’s Seizure Disorder (Epilepsy) would pose a “direct threat” to himself and others in the workplace, and the Court affirmed the lower court’s order granting the employer’s motion for summary judgment. The employer withdrew an offer of employment and the plaintiff filed suit, claiming that the employer discriminated against him on the basis of his disability. The Americans with Disabilities Act (ADA) defines “direct threat” as “a significant risk of substantial harm that cannot be eliminated or reduced by reasonable accommodation”. Determining whether an applicant or employee would pose a direct threat requires the employer to perform an individualized assessment of the individual’s present ability to safely perform the essential functions of the job.
U.S. Steel extended a conditional offer of employment to plaintiff, for work as a Utility Person, a safety-sensitive position which required handling power tools and torches, controlling mobile equipment, and requiring him to work near hazardous chemicals and molten metal. The offer was contingent upon the plaintiff completing a fitness-for-duty examination. The medical examination revealed that plaintiff had suffered four seizures in the past, and had been taking medications for several years. The exam also revealed that, several months before he applied to U.S. Steel, plaintiff had stopped taking any medications because of the adverse side effects. This was done against his neurologist’s advice. Plaintiff’s seizure disorder was uncontrolled, and plaintiff was again at high risk for seizures.
The ADA prohibits discrimination against a qualified individual on the basis of disability. The ADA also prohibits employers from “using qualification standards, employment tests or other selection criteria that screen out or tend to screen out an individual with a disability … unless the standard … is shown to be job-related and is consistent with business necessity.” The court acknowledged that a requirement that an employee not pose a direct threat to the health or safety of himself or others in the workplace is permissible, even if it tends to discriminate. The employee must show that he is a “qualified individual” able to perform the “essential duties” of the job with or without reasonable accommodation. It is the employer’s burden to show that their qualification standards are necessary to prevent a direct threat, and that the employer conducted an individualized assessment.
The court stated that the ADA required the employer’s direct threat analysis to include an individualized assessment of the applicant or employee, which must be informed by “a reasonable medical judgment that relies on the most current medical knowledge and/or on the best available objective evidence” and must also consider the following:
The duration of the risk;
The nature and severity of the potential harm;
The likelihood that the potential harm will occur; and
The imminence of the potential harm.
The court found that U.S. Steel’s direct threat analysis included a review of adequate objective medical evidence, including the Department of Transportation’s motor carrier handbook of physical qualifications for drivers of commercial motor vehicles, reports from several medical professionals, including plaintiff’s neurologist, diagnostic tests, and plaintiff’s own statements. In reviewing the four factors, the court found that since plaintiff’s Seizure Disorder was uncontrolled, that the duration was “indefinite”; that the severity of harm was “catastrophic” if plaintiff lost consciousness in a dangerous setting; that the harm was likely to occur; and that the evidence relating to imminence of the potential harm (although not as strong) did weigh in favor of U.S. Steel, and a finding that employing plaintiff could result in a direct threat to himself or others in the workplace. The court found that the employer had not violated the ADA in rescinding its conditional offer of employment.