Tenth Circuit: New Trial in ADA Direct Threat Case Due to Bad Jury Instructions

Today, the Tenth Circuit Court of Appeals held that an employer raising a direct threat defense under the Americans with Disabilities Act need only prove it had a reasonable belief that an impaired worker’s job performance would pose a “significant risk of substantial harm” to the employee or others, not that a threat actually existed. EEOC v. Beverage Distribs. Co. (10th Cir. 2015).

The court reversed a district court verdict in favor of the Equal Employment Opportunity Commission based on erroneous instructions to the district court jury. Those instructions advised the jury that to avoid liability, the employer had to prove former employee Michael Sungaila, who is legally blind, actually posed a direct threat to the health or safety of himself or others, and that the risk could not have been eliminated or reduced by reasonable accommodation.

“According to the first part [of the jury instructions], Beverage Distributors had to prove that Mr. Sungaila posed a direct threat,” the court wrote. “That was not accurate under our case law. Beverage Distributors should have avoided liability if it had reasonably believed the job would entail a direct threat; proof of an actual threat should have been unnecessary.”

According to the court, reversal was warranted if the jury might have relied on an erroneous jury instruction, even if such reliance were “very unlikely.” Accordingly, the case was reversed and remanded for a new trial.

This case is welcome news to employers, as it reinforces that employers are neither doctors nor clairvoyant, and should be allowed err on the side of safety as reason dictates.