Last December, a divided three-judge panel of the U.S. Court of Appeals for the Fifth Circuit issued a troubling opinion in the case of Nall v. BNSF, holding that an employer was not permitted to lawfully remove an employee posing a “direct threat” to his safety or the safety of others under the Americans with Disabilities Act (ADA), unless the employer could prove that the process used to make the decision – apart from the decision itself – was objectively reasonable.
In reversing a federal trial court ruling, the panel found that the process the company used here to conduct its direct threat assessment was unreasonable, which was enough in the panel’s view to send the case back down for further proceedings.
BNSF subsequently asked the court en banc to reconsider the panel’s decision, and NT Lakis lawyers filed a “friend-of-the-court” brief in support. Our brief argued among other things that preventing an employer from invoking the direct threat defense simply because its decision-making process was not as straightforward as the plaintiff (or the court) would have liked has no basis in the ADA’s statutory language, its implementing regulations, or any binding case law.
Members of the Center for Workplace Compliance (CWC) can read more here.