The Impact of Safety Standards on the Disabled
May 1, 2000
In a case of first impression among the federal appellate courts, the Court
of Appeals for the Fifth Circuit (Texas, Louisiana, Mississippi) has recently
held that an employer that has developed a safety standard, which applies to all
employees in a given class, may defend that standard as a business necessity. In
doing so, the court refused to adopt the Equal Employment Opportunity Commission’s
position that a qualification standard, which screens out disabled persons, can
be defended only under the "direct threat" provision of the Americans
with Disabilities Act.
In reaction to the Exxon Valdez disaster in 1989, Exxon adopted a policy
affecting about 10 percent of its job positions, which permanently removes from
positions which are safety-sensitive and without much supervision, any employee
who has undergone treatment for substance abuse. The EEOC sued Exxon, contending
that "the direct threat test must be used in every case where a
safety-based requirement is at issue." Equal Employment Opportunity
Commission v. Exxon Corp., (5th Cir. Feb. 11, 2000).
The Court of Appeals found nothing in the legislative history or language of
the ADA, and no case law, to support the EEOC’s position. If the safety-based
standard applies to all employees in a given class, the court ruled, the
employer does not have to establish a direct threat but may defend its standard
as a business necessity. The direct threat defense is valid in cases where the
alleged risk of an individual employee is at issue. "Direct threat focuses
on the individual employee, examining the specific risk posed by the employee’s
disability."
The court also addressed the kind of situations in which a safety-based
standard could constitute a business necessity, stating that a trial court
"should take into account the magnitude of the possible harm as well as the
probability of occurrence." Something which might be tolerable in an
ordinary job, the court gave as an example, might not be tolerable if the
position in question involved atomic reactors. A very low probability of great
harm is as important in this assessment as a high probability of little harm.
This case is important for two reasons. First, it is one more example of a
court’s refusal to give deference to rigid positions taken by the EEOC,
especially under the ADA. The courts seem to be taking a more "common
sense" approach to interpreting the statute than the EEOC takes. Second,
the business necessity defense is much easier for employers to establish for
policies of the sort at issue in this case than a direct threat defense. The
court seems to be saying that policies which are necessary to the operation of a
business, but which eliminate certain disabled persons from consideration, are
valid if the risk of substantial harm or frequent harm is sufficient.
For more information please contact Mary Ann B. Oakley at 1-888-688-8500 or
at maoakley@hklaw.com.
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