Establishing a ''Direct Threat'' Under the ADA

Under the ADA, an employer faced with a charge of discrimination by an individual with a disability can raise the affirmative defense that the person poses a ''direct threat.'' The employer's showing generally must be done on an individualized basis, not on the basis of a blanket exclusion. The EEOC's Title I regulations provide that: The determination that an individual poses a ''direct threat'' shall be based on an individualized assessment of the individual's present ability to safely perform the essential functions of the job. EEOC Factors to Evaluate Risk EEOC has specified four factors that the employer should use in evaluating the significance of the risk: (1) The duration of the risk; (2) The nature and severity of the potential harm; (3) The likelihood that the potential harm will occur; and (4) The imminence of the potential harm. The EEOC states that an employer may not base its decision on ''subjective perceptions, irrational fears, patronizing attitudes, or stereotypes'' about the nature of an employee's disability. Rather, in making any assessment, an employer's determination ''should be based on a reasonable medical judgment that relies on the most current medical knowledge and/or on the best available objective evidence