On March 16, the Tenth Circuit Court of Appeals – which has jurisdiction over appeals from Colorado, Kansas, New Mexico, Oklahoma, Utah and Wyoming – drove home that when it comes to jury instructions, the devil is in the details. Reasoning that a lower court jury “might have relied on the erroneous direct-threat standard,” the court reversed a verdict in favor of the U.S. Equal Employment Opportunity Commission (“EEOC”).
EEOC v. Beverage Distributors Co., LLC involved a disability discrimination claim lodged by a warehouse employee against his employer. The employer offered this employee a promotion to a higher-paying job, but it was conditioned on his passing a physical examination. Although he passed the exam, the examining doctor noted that he was legally blind and that he would require a workplace accommodation to mitigate the risks from his impaired vision. The employer refused to institute any accommodations and rescinded the promotion.
The EEOC brought suit in the District of Colorado on the employee’s behalf, alleging the employer’s actions violated the Americans with Disabilities Act (“ADA”). The employer responded by asserting a “direct threat” defense, arguing that the employee’s impaired vision would create a significant risk of harm to himself and others and that no reasonable accommodations could reduce or eliminate that risk. At the conclusion of the trial, the district court provided the jury with the following instruction on the employer’s defense:
To establish th[e direct-threat] defense, Beverage Distributors must prove both of the following by a preponderance of the evidence:
- Sungaila’s employment in a Night Warehouse position posed a significant risk of substantial harm to the health or safety of Mr. Sungaila and/or other employees; and
- Such a risk could not have been eliminated or reduced by reasonable accommodation.
The district court supplemented this instruction by telling the jury to consider the reasonableness of the employer’s belief regarding the existence of a direct threat.
The Tenth Circuit concluded that these instructions constituted reversible error. It held that the employer should not have been held liable for disability discrimination in rescinding the promotion if it had “reasonably believed the job would entail a direct threat.” The court explained that a reasonable belief was all that was needed – “proof of an actual threat should have been unnecessary.” The court additionally held that the trial court’s second instruction did not cure the error, and that the combined instruction was incorrect, stating: “The first part of the instruction inaccurately stated that Beverage Distributors had to prove that Mr. Sungaila posed a direct threat. And the second part of the instruction did not cure the error by directing the jury, without explanation, to consider the reasonableness of Beverage Distributors’ belief.”
This case is important in that it clarifies that actual proof of a direct threat is not required to assert the defense; all that is required is a reasonably-held belief of a direct threat. It also serves as a reminder that precise language is of paramount importance in jury instructions, lest a jury hold an employer liable based on a failure to prove something that it was not required to prove in the first instance.