42 U.S.C. § 12113

Defenses

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(a) In general

It may be a defense to a charge of discrimination under this chapter that an alleged application of qualification standards, tests, or selection criteria that screen out or tend to screen out or otherwise deny a job or benefit to an individual with a disability has been shown to be job-related and consistent with business necessity, and such performance cannot be accomplished by reasonable accommodation, as required under this subchapter.

(b) Qualification standards

The term “qualification standards” may include a requirement that an individual shall not pose a direct threat to the health or safety of other individuals in the workplace.

Notwithstanding section 12102(4)(E)(ii) of this title, a covered entity shall not use qualification standards, employment tests, or other selection criteria based on an individual’s uncorrected vision unless the standard, test, or other selection criteria, as used by the covered entity, is shown to be job-related for the position in question and consistent with business necessity.

(d) Religious entities(1) In general

This subchapter shall not prohibit a religious corporation, association, educational institution, or society from giving preference in employment to individuals of a particular religion to perform work connected with the carrying on by such corporation, association, educational institution, or society of its activities.

(2) Religious tenets requirement

Under this subchapter, a religious organization may require that all applicants and employees conform to the religious tenets of such organization.

(e) List of infectious and communicable diseases(1) In generalThe Secretary of Health and Human Services, not later than 6 months after July 26, 1990, shall—(A) review all infectious and communicable diseases which may be transmitted through handling the food supply;(B) publish a list of infectious and communicable diseases which are transmitted through handling the food supply;(C) publish the methods by which such diseases are transmitted; and(D) widely disseminate such information regarding the list of diseases and their modes of transmissability 11 So in original. Probably should be “transmissibility”. to the general public.Such list shall be updated annually.(2) Applications

In any case in which an individual has an infectious or communicable disease that is transmitted to others through the handling of food, that is included on the list developed by the Secretary of Health and Human Services under paragraph (1), and which cannot be eliminated by reasonable accommodation, a covered entity may refuse to assign or continue to assign such individual to a job involving food handling.

(3) Construction

Nothing in this chapter shall be construed to preempt, modify, or amend any State, county, or local law, ordinance, or regulation applicable to food handling which is designed to protect the public health from individuals who pose a significant risk to the health or safety of others, which cannot be eliminated by reasonable accommodation, pursuant to the list of infectious or communicable diseases and the modes of transmissability ¹ published by the Secretary of Health and Human Services.

(Pub. L. 101–336, title I, § 103, July 26, 1990, 104 Stat. 333; Pub. L. 110–325, § 5(b), Sept. 25, 2008, 122 Stat. 3557.)Editorial NotesReferences in Text

This chapter, referred to in subsecs. (a) and (e)(3), was in the original “this Act”, meaning Pub. L. 101–336, July 26, 1990, 104 Stat. 327, which is classified principally to this chapter. For complete classification of this Act to the Code, see Short Title note set out under section 12101 of this title and Tables.

Amendments

2008—Subsecs. (c) to (e). Pub. L. 110–325 added subsec. (c) and redesignated former subsecs. (c) and (d) as (d) and (e), respectively.

Statutory Notes and Related SubsidiariesEffective Date of 2008 Amendment

Amendment by Pub. L. 110–325 effective Jan. 1, 2009, see section 8 of Pub. L. 110–325, set out as a note under section 705 of Title 29, Labor.

Effective Date

Section effective 24 months after July 26, 1990, see section 108 of Pub. L. 101–336, set out as a note under section 12111 of this title.

Notes of Decisions

Cited in 314 cases (58 in the last 5 years), 1993–2026 · leading case: Bates v. United Parcel Serv., Inc., 511 F.3d 974 (9th Cir. 2007).

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Bates v. United Parcel Serv., Inc., 511 F.3d 974 (9th Cir. 2007). · cites it 13× “§ 12112 (a), (b)(6), and the showing required of an employer to successfully assert the business necessity defense to use of such qualification under 42 U.S.C. § 12113 (a). Because this case involves a facially discriminatory qualification standard, we conclude that the…”

Chevron U. S. A. Inc. v. Echazabal, 536 U.S. 73 (2002). · cites it 5× “42 U. S. C. § 12113 (a). Without more, those provisions would allow an employer to turn away someone whose work would pose a serious risk to himself.”

Den Hartog v. Wasatch Academy, 129 F.3d 1076 (10th Cir. 1997). · cites it 8× “42 U.S.C. § 12113 (b) (1994). The availability of these affirmative defenses establishes that there are certain levels of disability-caused conduct that need not be tolerated or accommodated by employers.”

Jacqueline Lewis v. City of Union City, Georgia, 934 F.3d 1169 (11th Cir. 2019). · cites it 2× “See 42 U.S.C. § 12113 . Specifically, he reasoned that Dr.”

Michael Nall v. BNSF Ry. Co., 917 F.3d 335 (5th Cir. 2019). · cites it 2× “§ 12111 (3)); see also 42 U.S.C. § 12113 (b). Whether an employer has properly determined that a person poses a direct threat depends on “the objective reasonableness of [the employer’s] actions.”

Albertson's, Inc. v. Kirkingburg, 527 U.S. 555 (1999). · cites it 3× “(quoting 42 U. S. C. § 12113 (b)). Although the court suggested that Albertson's might be able to make such a showing on remand, 143 F.”

Barnhart v. Peabody Coal Co., 537 U.S. 149 (2003). · cites it 2× “" 42 U.S.C. § 12113 (b) (emphasis added). Little wonder that the Court did not find in that text "an omission [that] bespeaks a negative implication," 536 U.”

Diane Lovejoy-Wilson, Plaintiff-Appellant-Cross-Appellee v. Noco Motor Fuel, Inc., Defendant-Appellee-Cross-Appellant, 263 F.3d 208 (2d Cir. 2001). · cites it 2× “” 42 U.S.C. § 12113 (b); see also Nunes v. Wal-Mart Stores, Inc.”

Jana L. Morton v. United Parcel Serv., Inc., 272 F.3d 1249 (9th Cir. 2001). · cites it 4× “The statute goes on to state that: It may be a defense to a charge of discrimination under this chapter that an alleged application of qualification standards, tests, or selection criteria that screen out or tend to screen out or otherwise deny a job or benefit to an individual…”

Cyril Korte v. HHS, 735 F.3d 654 (7th Cir. 2013). · cites it 2× “§ 2000e-1(a), and the Americans with Disabilities Act of 1990, 42 U.S.C. §§ 12113 (d), 12187; see Gilardi, 2013 WL 5854246 , at *33–*34 (Edwards, J.”

Robert Dark v. Curry Cnty. Curry Cnty. Road Dep't Dan Crumley, Individually & in His Off. Capacity as Curry Cnty. Roadmaster, 451 F.3d 1078 (9th Cir. 2006). · cites it 2× “” 42 U.S.C. § 12113 (b). For purposes of this summary judgment motion, it matters not whether we consider the County’s asserted defense under the rubric of “direct threat” or “business necessity.”

Todd Michael v. City of Troy Police Dep't, 808 F.3d 304 (6th Cir. 2015). · cites it 4× “2000) (same); 42 U.S.C. § 12113 (b). A “direct threat” is “a significant risk to the health or safety of others that cannot be eliminated by reasonable accommodation.”

Show all 314 citing cases →

— 42 U.S.C. § 12113(a) — 3 cases

Jerri Todd v. Fayette Cnty. Sch. Dist., 998 F.3d 1203 (11th Cir. 2021).

Layser v. Morrison, 935 F. Supp. 562 (E.D. Pa. 1995).

Bodenstab v. Cnty. of Cook, 539 F. Supp. 2d 1009 (N.D. Ill. 2008).

— 42 U.S.C. § 12113(b) — 2 cases

Sarsycki v. United Parcel Serv., 862 F. Supp. 336 (W.D. Okla. 1994).

Layser v. Morrison, 935 F. Supp. 562 (E.D. Pa. 1995).

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