Assessing the direct threat defense: A Texas primer

A recent case from central Texas illuminates the “direct threat” defense in the Americans with Disabilities Act (ADA).

Employee injured in nonwork accident

Rolando Vasquez worked for Union Pacific Railroad as an electronic technician inspector (ETI). He identified and fixed any problem with electronic or microprocessor-based systems.

On June 8, 2019, Vasquez’s life changed. He crashed his motorcycle, suffering severe injuries. The railroad would not let him return to work, asserting that his injuries—which resulted in ADA-covered disabilities—prevented him from safely returning to his old job or other jobs. He sued under the ADA for discrimination.

What is a ‘direct threat’ defense?

Here, the railroad admitted that Vasquez’s disabilities were the reason it would not let him come back to work. A confession of an ADA violation? Yes. But the direct threat defense—that is, that the employee’s return poses a significant risk to the health and safety to the employee or others that cannot be eliminated by a reasonable accommodation—provides an absolute defense for the employer.

In establishing such a defense, the employer must make an individualized assessment of the threats, considering the following: