The 'Direct Threat' Defense in NJ Disability Cases: When Safety Concerns Are Really Pretext

Disability discrimination claims in New Jersey often involve disputes over whether an employer’s safety concerns reflect a legitimate workplace need or a reason to exclude an employee. Under both state and federal laws, employers have limited defenses when they believe a worker poses a direct threat. Those concerns must be based on an individualized assessment rather than assumptions.

A safety concern that lacks evidence and relies on stereotypes about a disability doesn’t justify discrimination. At Brandon J. Broderick, our legal team reviews cases where employers rely on rigid policies to defend decisions involving termination or reassignment. These disputes turn on the facts behind the employer’s decision, including medical information, job requirements, available accommodations, and whether the employer considered alternatives.

This article explains how the direct threat defense works, what employers must prove, how employees challenge safety-based decisions, and when to contact a disability discrimination lawyer in New Jersey.

The Direct Threat Defense Under New Jersey Law

Safety is the most common justification in disability termination letters, and it is the one defense the law explicitly gives employers in disability discrimination cases. 

Under the Americans with Disabilities Act, an employer is permitted to exclude a worker who poses a direct threat. The Equal Employment Opportunity Commission expands its regulation at 29 CFR 1630.2(r). 

A direct threat means a significant risk of substantial harm to the health or safety of the worker or other people, and the risk must be one that no reasonable accommodation eliminates or reduces. The U.S. Supreme Court confirmed it in Chevron U.S.A. v. Echazabal (2002). This defense applies not only when others are at risk, but also when the employee's own health is in serious danger.

New Jersey law recognizes that some disabilities may prevent a worker from performing a particular job. In those situations, the employer must show that the condition actually limits the employee’s ability to do that specific work. 

State regulations reinforce this standard by requiring employers to base safety decisions on the employee's actual ability to perform the job rather than assumptions about a disability. The NJLAD also applies to every employer in the state, so these protections extend to workers at businesses too small to fall under the ADA's 15-employee threshold.

The direct threat defense does not deny that disability was involved in the employment decision. Instead, the employer argues that the decision was lawful because the employee’s condition created a significant safety risk that could not be addressed through accommodation. 

The burden of proof belongs to the employer. The worker doesn’t have to show that the job was safe. Instead, the employer must present evidence showing it was not. Our lawyers regularly review disability cases where employers rely on their own policies to defend a termination or reassignment. 

Employers may apply them in good faith, but they can also be used to justify decisions based on inaccurate assumptions about a worker's condition. Both federal and state courts require employers to meet specific legal standards before the defense applies. A disability discrimination attorney in New Jersey can help evaluate whether the employer supported its decision with objective evidence. 

How Accommodation Rules Apply to Direct Threat Defense Under Federal and New Jersey Law

Federal law doesn’t allow employers to rely on general assumptions about a medical condition. They must evaluate the employee's current ability to perform the essential functions of the job safely using reasonable medical judgment and the best available objective evidence. 

A diagnosis, prescription medication, or medical history by itself doesn’t establish that an employee cannot perform the work.  The regulation directs employers to weigh four factors:

• Duration of the risk, since a temporary condition presents a different question than a permanent one
• Nature and severity of the potential harm, because a paper cut and an amputation do not justify the same response
• Likelihood that the harm will actually occur, which requires probability, not possibility
• Imminence of the potential harm, meaning how soon the feared event would happen

The standard came from the Supreme Court before the ADA existed. In School Board of Nassau County v. Arline (1987), the court held that a teacher with tuberculosis was entitled to an individualized medical inquiry rather than exclusion based on fear of her diagnosis. Bragdon v. Abbott (1998) applied the same rule to a patient with HIV. 

The EEOC requires employers to look at facts, not assumptions. An employee with epilepsy, for example, cannot be treated as a safety risk based only on the condition itself. This individualized approach is important as workers with disabilities continue to face barriers in employment, with only about 22.8% employed in 2025. Employers must consider the employee’s actual restrictions and the evidence available before making a decision. 

A direct threat exists only when the risk of harm is significant and cannot be addressed through a reasonable accommodation. A minor or speculative risk does not meet this standard. Our attorneys at Brandon J. Broderick regularly review cases where the dispute centers on whether an employer properly considered available compromises before punishing the worker. 

A forklift operator with a seizure disorder may present a safety concern in a role involving heavy machinery, but the employer must consider possible alternatives first. Reassignment to a warehouse position without those hazards may address the concern without ending employment. 

The New Jersey Standard for Safety-Based Employment Decisions

Jansen v. Food Circus Supermarkets (1988) remains New Jersey's leading case on the safety defense. Daniel Jansen worked as a supermarket meat cutter for eight years before suffering a partial seizure while using a knife on the job. After two company-selected physicians concluded that his condition was not adequately controlled, Food Circus terminated his employment.

The New Jersey Supreme Court used the case to establish the standard under the NJLAD. An employer must prove, with a reasonable degree of certainty, that it reasonably concluded the disability created a risk of harm in the workplace.

The standard requires more than a general concern. This is especially important for conditions such as substance use disorder, where stigma can lead to unfair conclusions about an employee’s abilities. Employers must show a materially increased risk of substantial harm, not simply the ordinary risks that exist in any job or the possibility of a minor injury. 

The Court also explained that decisions cannot be based on coworkers' fears or stereotypes about epilepsy. Instead, each employee must be evaluated individually because seizure disorders vary from person to person.

In Greenwood v. State Police Training Center (1992), the New Jersey Supreme Court explained what employers must provide to support a safety-based employment decision. Subjective opinions and conclusory medical reports aren’t enough. The evidence must explain how the employee’s condition affects their ability to safely do the essential functions of the job. 

Recognizing a Safety Pretext in New Jersey Disability Cases

A pretext is a stated reason that does not reflect the employer's actual motivation. In disability cases, safety-based explanations often follow recognizable patterns when they are not backed by the facts. Warning signs include:

• No medical examination before the decision, or reliance on an examination years out of date
• No discussion of accommodations, reassignment, or restrictions before the termination
• A clean safety record over the years in the same position, contradicted suddenly by a claimed risk
• A safety concern that surfaced only after the worker disclosed a condition, requested an accommodation, or filed a workers' compensation claim
• A conclusory letter from a company-selected doctor who never examined the worker
• Non-disabled workers with the same alleged risk factor are treated differently
• A blanket policy excluding an entire diagnosis from a job category, the exact approach Jansen forbids

Timing is relevant. A worker who receives consistently positive performance reviews but is suddenly described as a safety risk shortly after disclosing a disability may have grounds to question the employer's explanation. 

Courts also look at how the employer treated other employees. If the employer allowed the worker to remain in the same position for months after learning of the diagnosis, that timing may not be consistent with a claimed safety concern.

The evidence in these cases comes from documents the employer already created. Personnel files, performance reviews, the medical reports behind the decision, internal emails about the worker, and the termination paperwork either contain the individualized assessment the law requires or reveal its absence. 

Workers may already possess some of these documents, and additional records may become available through litigation. Preserving copies of performance reviews and workplace correspondence before leaving employment is an important step.

Deadlines begin on the date of the termination or other adverse employment action. A claim under the New Jersey Law Against Discrimination generally must be filed in the New Jersey Superior Court within two years. The law allows remedies such as reinstatement, back pay, front pay, emotional distress damages, and attorney's fees. It doesn’t place caps on compensatory damages. 

Complaints filed with the New Jersey Division on Civil Rights have a 180-day deadline, while charges filed with the EEOC must be filed within 300 days.

The direct threat defense has an important role when a real safety concern exists, and the employer can support its decision with objective evidence. But employers still must evaluate each situation individually and consider reasonable accommodations before taking action. The records created during that process often become some of the most important evidence in a disability discrimination case. 

If you believe safety concerns were used to justify an unlawful employment decision, contact us today for a free consultation to discuss your legal options.