NT Lakis lawyers have filed a friend-of-the-court brief with the full U.S. Court of Appeals for the Fifth Circuit urging the court to review and overturn a 2-1 panel ruling that we argue badly misinterprets the scope of the “direct threat” defense under the Americans with Disabilities Act (ADA).
Our brief to the full court in Nall v. BNSF Railway Co., joined by the National Federation of Independent Business (NFIB), argues that the panel majority erred in holding that an employer is not permitted to invoke the ADA’s direct threat defense unless the employer can prove that the process it used in making the determination was objectively reasonable.
In this case, the plaintiff, who suffered from Parkinson’s disease, was removed from his safety-sensitive position after the company concluded that keeping him in the job would pose a direct threat to his safety or the safety of other employees. Rather than focusing on the company’s ultimate decision to remove the plaintiff from his job, however, the panel majority found the process the company used to come to that conclusion was unreasonable.
Our brief argues that denying an employer the direct threat defense simply based on perceived “process” irregularities does not jibe with the ADA itself, its implementing regulations, or any interpretations by the U.S. Supreme Court or the Fifth Circuit itself.
A copy of our brief is available here.
Members of the Center for Workplace Compliance (CWC) can read more here.