By Erin Dougherty Foley and James Nasiri*
Seyfarth Synopsis: On February 11, 2022, the U.S. Court of Appeals for the Seventh Circuit affirmed a district court order granting a steel producer’s motion for summary judgment on disability discrimination claims filed by a job applicant whose conditional offer was rescinded. The Court’s ruling offers valuable insights into an employer’s duties during the hiring process, especially with respect to applicants with disabilities.
The plaintiff in this case suffered from a seizure disorder, and after his third seizure, he sought treatment from a neurologist. The neurologist deemed the plaintiff’s seizure disorder to be “not well controlled” and prescribed medication to reduce the risk of seizures. The plaintiff followed the neurologist’s treatment plan for about two years, but after several requests by the plaintiff to stop taking his medication, the neurologist adjusted the plaintiff’s treatment plan to gradually remove his seizure medication altogether.
A few months after the plaintiff requested an adjustment of his treatment plan, he applied to work as a utility person at U.S. Steel. The employer identified the utility person role as a “safety-sensitive” position because it involved the use of power tools and torches, and required the employee to work near hazardous chemicals and molten metal. U.S. Steel made a job offer to the plaintiff contingent upon passing a fitness-for-duty examination, but during the company’s examination process, it was revealed that the plaintiff had experienced four seizures and stopped taking medication against his neurologist’s advice. As a result, the company determined that the plaintiff’s substantial work restrictions could not be accommodated in the utility person role, and thus revoked his job offer.
The plaintiff filed a lawsuit claiming that U.S. Steel rescinded his job offer on the basis of a real or perceived disability in violation of the Americans with Disabilities Act (“ADA”). The district court held that the plaintiff’s uncontrolled seizure disorder would pose a direct threat to himself and others, thereby granting the employer’s motion for summary judgment. On appeal, the Seventh Circuit began by assessing whether U.S. Steel’s decision to revoke the plaintiff’s job offer was based on adequate medical evidence and undertaken as an individualized assessment.
To that end, the Court determined that U.S. Steel relied on several sets of objective medical evidence, including: 1) Department of Transportation (“DOT”) physical job requirements; 2) the neurologist’s medical referral form; 3) the neurologist’s treatment notes; and 4) the plaintiff’s own health forms and examination. The plaintiff argued that he was “categorically disqualified based on preconceived notions of seizures,” but the Court noted that the employer revoked the plaintiff’s job offer primarily because his seizure disorder was uncontrolled – a fact about which there was no genuine dispute. The plaintiff further challenged U.S. Steel’s reliance on DOT regulations as categorical discrimination, but the Court emphasized that the employer’s decision was based on much more than solely DOT regulations.
Since U.S. Steel revoked the plaintiff’s job offer due to his uncontrolled seizure disorder, it relied on the statutory “direct threat” defense, which provides that employers may refuse to hire an employee who poses a direct threat to the health and safety of others. The Court’s analysis here began with the duration of the risk, which is presumed to be indefinite when the risk (or in this case, the medical condition) is uncontrolled. Along these same lines, the Court noted that any condition that is uncontrolled and of an unlimited duration may be considered likely to occur. Finally, the Court reasoned that, given the potentially disastrous consequences of the plaintiff seizing and losing consciousness in a steel plant, the health and safety risk posed by the plaintiff was severe. Accordingly, the Court affirmed summary judgment in the employer’s favor.
The Seventh Circuit’s reasoning in this case underscores a few key takeaways for employers with respect to the hiring process. First of all, the Court in Pontinen provides a definitive example of a “direct threat” under the ADA, as U.S. Steel was able to show how dangerous an employee seizing and losing consciousness would be to its normal business operations. The Court’s direct threat analysis further demonstrates how important it is for employers to rely on strictly verified, objective guidelines and data in making employment decisions. To this point, the Court also made an interesting statement when it noted that the plaintiff’s claims would have been evaluated differently if U.S. Steel made its hiring decision based solely on the DOT regulations. This statement should raise a flag for employers – especially those operating within the Seventh Circuit’s jurisdiction – that any hiring decisions made in reliance on general government or industry guidelines must also be supported by substantial evidence relevant to the specific employee at issue.
*James Nasiri is a law clerk with Seyfarth, and Erin Foley is grateful for his assistance with this post.