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Should the Defense Have to Prove Direct Threat of Harm? Essay

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I. INTRODUCTION
The Equal Employment Opportunity Commission (EEOC) and judicial expansion of the direct threat of harm to self or others defense has strengthened the employee’s position under the Americans with Disabilities Act (ADA) by applying ration standards to this defense. If an employer has false assumptions about a prospective employee’s capabilities because of his/her disability, then the employer should have the burden of proving why the employee would be a direct threat to themselves of others.
II. THE AMERICAN WITH DISABILITIES ACT (ADA)
The purpose for the Americans with Disabilities Act is to assist people with disabilities find their place in society so they may use their skills to function and contribute, without prejudice. In 2008, the ADA Amendments Act was passed to expand the definition of disability and includes five titles. The first of these titles is Employment (Title I). Title I require, “covered employers to provide reasonable accommodations for applicants and employees with disabilities and prohibits discrimination on the basis of disability in all aspects of employment.” Under this title however, it does allow the employer to claim that an individual’s disability may cause a direct threat to themselves, or others.
Regulations issued by the EEOC implementing the ADA are specifically intended to, “provide a clear and comprehensive national mandate for the elimination of discrimination against individuals with disabilities, and to provide clear, strong, consistent, enforceable standards addressing discrimination.” These regulations not only define “Disability” and what constitutes a “Qualified Individual with a Disability”, but also set the qualification standards for tests and other selection...


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...upport him and he would fall frequently”. They also stated that Bradley was “very wide when using his crutches, making him an obstacle to other people.” The EEOC’s expert stated Bradley would not pose a threat if using a wheelchair. Wal-Mart never explained whether or not a wheelchair would pose a threat. Wal-Mart’s expert witness admitted Bradley would be more stable in a wheelchair, and would be less of a threat than if he were on crutches. After Wal-Mart attempted to prove a “direct threat” defense, The Eighth Circuit court held that Wal-Mart still failed to prove that Bradley was a direct threat to the safety of himself, or others, and reversed the grant of summary judgment by the district court. The court’s opinion in this case went by the same reasoning as most courts that “direct threat” is an affirmative defense that the defendant-employer must prove.


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