So What If I\u27m Gonna Hurt Myself: The ADA\u27s Direct Threat Defense

A high-beam walking ironworker atop a skyscraper develops a severe case of vertigo. A power saw operator develops narcolepsy. Must the employers of these individuals with disabilities tolerate the risk that they pose to their own safety in fear of facing disability discrimination charges by removing the employees from their jobs? The Americans with Disabilities Act of 1990 (ADA) clearly provides a defense to a discrimination claim by an individual with a disability when the employer takes action based on the individual’s posing a direct threat to the health or safety of other individuals in the workplace. This is commonly referred to as the direct threat defense. But what if the employee poses a direct threat to his own health or safety, but does not pose a direct threat to the health or safety of other individuals in the workplace? Will the direct threat defense shield an employer who discriminates against an individual with a disability in those circumstances? Framed another way, does the ADA’s direct threat defense include a direct threat (to self) defense? This article thoroughly addresses the sometimes thorny and complex direct threat defense. The article describes the ADA’s textual direct threat defense, which applies only to threats to others, and illustrates how the Equal Employment Opportunity Commission (EEOC) expanded the direct threat defense to include direct threats to one’s own health or safety in addition to the safety of others in the workplace. The EEOC defines direct threat as “a significant risk of substantial harm to the health or safety of the individual or others that cannot be eliminated or reduced by reasonable accommodation.” The EEOC’s expansion of the direct threat defense prompted confusion among federal courts. Some federal courts deferred to the EEOC’s regulations, which inherently limited protection for employees with disabilities; other federal courts refused to defer to the EEOC’s expanded direct threat defense, concluding that the ADA itself was the proper standard for the direct threat defense and that the ADA’s text did not include threats to self in the direct threat defense. Still other courts adopted a hybrid approach, which inherently transported the direct threat defense from the employer’s case to the employee’s case by requiring them to establish that they are able to perform the essential functions of a job without risk of injury to themselves. After letting the authorized scope of the direct threat defense percolate in the lower courts for a few years, the Supreme Court then addressed the disagreement among circuit courts. The Court held that the ADA permits the EEOC’s enhanced regulation and allows deference to the EEOC’s interpretation of the direct threat defense. The Court reasoned that Congress included the harm-to-others provision in the ADA as simply an example of a legitimate qualification standard that is job-related and consistent with business necessity. But the use of that example did not limit the scope of the ADA’s direct threat defense only to threats to another and not to oneself. The Court rejected the idea that the EEOC’s direct threat defense encourages discriminatory paternalism. Instead, the Court concluded that the EEOC reasonably interpreted the ADA in a way that would not force employers to ignore “specific and documented risks to the employee himself, even if the employee would take his chances for the sake of getting a job.” Even though the Supreme Court validated the EEOC’s expanded direct threat defense, this article explains how to properly analyze the scope of the defense in light of the Supreme Court’s narrow and strict interpretation of it. Despite the Court’s validation of the expanded direct threat defense, including threats to self, attorneys must understand that such a defense only applies in limited circumstances and that employment decisions based on unsubstantiated fears and stereotypes will not (and must not) be accommodated by the defense. Moreover, the direct threat defense does not permit an employer to exclude an individual with a disability when that individual’s disability might pose a direct threat to his own health or safety; rather, the employee must pose a significant risk to his health or safety. Additionally, an employer still must conduct an individualized assessment based on the most current medical knowledge or best available objective evidence to determine whether an individual poses a significant risk of substantial harm to himself. Even if an individual’s disability poses a direct threat to his health or safety, an employer is still required to conduct a reasonable accommodation analysis to determine whether the individual with a disability can perform the position’s essential functions. In sum, the Supreme Court’s blessing of the EEOC’s expanded direct threat defense does not open additional avenues of discrimination against individuals with disabilities. Indeed, the use of the direct threat defense in cases involving direct threats to oneself should not be readily attainable and most likely will be sparingly utilized in practice. If an attorney for either an employer or employee with a disability uses the framework outlined in this article to navigate the direct threat defense when faced with the difficult question of whether an individual poses a direct threat to his own health or safety, a workable and humane balance can be achieved between ensuring that individuals with disabilities do not unnecessarily endanger themselves while ensuring that individuals with disabilities are not unlawfully discriminated against based on stereotypes, myths, speculation, or unfocused paternalism

Stochastically Perturbed Chains of Variable Memory

In this paper, we study inference for chains of variable order under two distinct contamination regimes. Consider we have a chain of variable memory on a finite alphabet containing zero. At each instant of time an independent coin is flipped and if it turns head a contamination occurs. In the first regime a zero is read independent of the value of the chain. In the second regime, the value of another chain of variable memory is observed instead of the original one. Our results state that the difference between the transition probabilities of the original process and the corresponding ones of the contaminated process may be bounded above uniformly. Moreover, if the contamination probability is small enough, using a version of the Context algorithm we are able to recover the context tree of the original process through a contaminated sample

Cepheid Variables in the Maser-Host Galaxy NGC 4258

We present results of a ground-based survey for Cepheid variables in NGC 4258. This galaxy plays a key role in the Extragalactic Distance Scale due to its very precise and accurate distance determination via VLBI observations of water masers. We imaged two fields within this galaxy using the Gemini North telescope and GMOS, obtaining 16 epochs of data in the SDSS gri bands over 4 years. We carried out PSF photometry and detected 94 Cepheids with periods between 7 and 127 days, as well as an additional 215 variables which may be Cepheids or Population II pulsators. We used the Cepheid sample to test the absolute calibration of theoretical gri Period-Luminosity relations and found good agreement with the maser distance to this galaxy. The expected data products from the Large Synoptic Survey Telescope (LSST) should enable Cepheid searches out to at least 10 Mpc.Comment: Accepted for publication in the Astronomical Journa

Experimental Verification of the Number Relation at Room and Elevated Temperatures

The accuracy of the Neuber equation for predicting notch root stress-strain behavior at room temperature and at 650 C was experimentally investigated. Strains on notched specimens were measured with a non-contacting, interferometric technique and stresses were simulated with smooth specimens. Predictions of notch root stress-strain response were made from the Neuber Equation and smooth specimen behavior. Neuber predictions gave very accurate results at room temperature. However, the predicted interaction of creep and stress relaxation differed from experimentally measured behavior at 650 C

Children’s Perceptions of Intimate Partner Violence: Causes, Consequences, and Coping

Children’s appraisals of conflictual and aggressive parental interactions mediate their effect on children’s adjustment. Previous studies have relied almost exclusively on selfreport questionnaires to assess appraisals; consequently we know little about perceptions that occur naturallywhen children witness interparental aggression. This study employed a semistructured interview to assess the thoughts and feelings of 34 children (ages 7–12) whose mothers were receiving services at domestic violence agencies, and mothers reported on interparental aggression that took place in the home. Children’s thoughts centered on consequences and efforts to understand why fights occurred. They generally viewed their mother’s partner as responsible for violence, though a significant number viewed both parents as playing a role. Sadness and anger were more common than anxiety, and children often attempted to stop or withdraw from fights or both. When asked why family violence occurs, most focused on perpetrators’ lack of control of anger or personal characteristics, but approximately onethird viewed victims as provoking aggression. These findings support the idea that children actively attempt to understand the causes and consequences of interparental violence and suggest that their perceptions and interpretations are important for understanding the development of beliefs regarding the use of violence in close relationships

Adoption of simultaneous different strategies against different opponents enhances cooperation

The emergence of cooperation has been widely studied in the context of game theory on structured populations. Usually the individuals adopt one strategy against all their neighbors. The structure can provide reproductive success for the cooperative strategy, at least for low values of defection tendency. Other mechanisms, such punishment, can also be responsible for cooperation emergence. But what happens if the players adopt simultaneously different strategies against each one of their opponents, not just a single one? Here we study this question in the prisoner dilemma scenario structured on a square lattice and on a ring. We show that if an update rule is defined in which the players replace the strategy that furnishes the smallest payoff, a punishment response mechanism against defectors without imputing cost to the punishers appears, cooperation dominates and, even if the tendency of defection is huge, cooperation still remains alive

Bank Financing and Investment Decisions with Asymmetric Information

Banks know more about the quality of their assets than do outside investors. This informational asymmetry can distort investment decisions if the bank must raise funds from uninformed outsiders, and assets sold will be subject to a lemons discount. Using a three-period equilibrium model we examine the effect of asymmetric information about loan quality on the asset and liability decisions of banks and the market valuation of bank liabilities. The existence of a precautionary demand for T-bills against future liquidity needs depends both on the regulatory environment and the informational structure. If banks are ex ante identical, issuing risky debt to fund a deposit outflow is preferred to holding T-bills ex ante. However, if banks have partial knowledge of loan quality, and if their asset choice is observable, they may hold T-bills to signal their quality, enabling them to issue risky debt at a lower interest rate.