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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