This absence of authority is unsurprising because both the ADA itself and the case law construing the ADA make clear that the availability of a reasonable accommodation is directly relevant to both the business necessity and the direct threat defenses. See 42 U.S.C. § 12113(a) (business necessity defense applies where qualification standard is “shown to be job-related and consistent with business necessity, and such performance cannot be accomplished by reasonable accommodation”); Taylor, 451 F.3d at 906 (D.C. Cir. 2006) (“‘Direct threat’ in this context means a significant risk of substantial harm to the health or safety of the individual that cannot be eliminated or reduced by reasonable accommodation.”) (emphasis added and internal quotations omitted).

48 The employer’s burden is a “preponderance of the evidence” standard. Atkins v. Salazar, 677 F.3d 667, 681 (5th Cir. 2011) (explaining that 42 U.S.C. 12113 creates an affirmative, business necessity defenses, which must are only subject to a preponderance of the evidence standard) (citing Echazabal, 563 U.S. at 78). 49 Critically, Dr. Razak expressly agreed with Dr. Talkachova’s conclusions in Defendant’s Expert Report.

648.3859 Jennifer.Englander@ogletreedeakins.com Bill.Payne@ogletreedeakins.com Attorneys for Defendant, Conrad Industries 31 Turco v. Hoechst Celanese Corp., 101 F.3d 1090, 1094 (5th Cir. 1996) (citing 42 U.S.C. § 12113(b)). Case 6:17-cv-00393-PJH Document 39 Filed 12/26/17 Page 10 of 11 PageID #: 823 11 CERTIFICATE OF SERVICE I hereby certify that a copy of the foregoing has been filed via the Court’s Electronic Case Filing System, which provides for service on all counsel of record.

As the Tenth Circuit has explained, “the employer has the right to establish to establish what is required to satisfactorily perform the job,” provided the requirements are “(1) job-related, (2) uniformly enforced, and (3) consistent with business necessity.” Wilkerson v. Shinseki, 606 F.3d 1256, 1264 (10th Cir. 2010); see also 42 U.S.C. § 12113(a), 29 C.F.R. § 1630.15, McDonald v. Holder, 2010 WL 4362821 at *3 (N.D. Oklahoma Oct. 26, 2010).

The determination that an individual poses a “direct threat” must be based on an individualized assessment of the individual's present ability to safely perform the functions of the job, considering a reasonable medical judgment relying on the most current medical knowledge and/or the best available objective evidence. See 42 U.S.C. § 12113(b) (1994); 29 C.F.R. pt. 1630 App. Sec.

Furthermore, the DCHRA’s “business necessity” and “bona fide occupational requirement” exceptions closely mirror the exceptions for “business necessity” and “job-related” tests and standards in Title I of the ADA. Compare 42 U.S.C. § 12113(a) with D.C. Code § 2-1401.03(a), (e). These detailed employment provisions of the DCHRA are comparable to provisions in Title I of the ADA, and they further highlight the difference of substance, detail, and depth between the District of Columbia and federal public accommodations provisions.

The Americans with Disabilities Act (“ADA”) provides that an employer is not required to provide an accommodation to an employee that would pose a direct threat to the safety of employees. See 42 U.S.C. § 12113(a), (b); 29 C.F.R. § 1630.2(r); see also MSJ, D.E. # 55, at pp. 20-21 (citing Leme v. S. Baptist Hosp. of Fla., Inc., 248 F. Supp. 3d 1319 (M.D. Fla. 2017), detailing the direct threat defense under the ADA and establishing that Thomas & Betts was not required to provide an accommodation that would pose a direct Case 6:16-cv-01998-PGB-DCI Document 57 Filed 11/11/17 Page 6 of 21 PageID 859 7 threat to the safety of Plaintiff and other employees). Mr. Ward’s opinion is based upon this provision of the ADA and the regulations interpreting it, and it provides support for Thomas & Betts’ argument that Plaintiff’s suggestion he could have performed his former job without use of his right arm, if allowed, was untenable because it presented a direct safety risk. This testimony would therefore be highly relevant to the issues related to Plaintiff’s proposed accommodation.

11-5327, 2013 WL 1234809, at *7 (E.D. Pa. Mar. 27, 2013) (quoting Case 5:15-cv-05235-JFL Document 35-1 Filed 05/01/17 Page 9 of 15 -7- Kolstad, 527 U.S. at 536). In Kolstad the Supreme Court specifically stated that there are situations where even intentional discrimination will not result in punitive damages such as where the employer “reasonably believe[s] that its discrimination satisfies a bona fide occupational qualification defense or a statutory exception to liability” and specifically cited to 42 U.S.C. § 12113 (the business necessity defense) as an example of such a situation. 527 U.S. at 537.

The ADA includes the defense that employers may set qualification standards that do not “pose a direct threat to the health or safety of others in the workplace.” 42 U.S.C. § 12113(b). However, courts in this Circuit repeatedly have held that when an employer asserts an employee is not “qualified” because she poses a direct threat, the employer has the burden of proof.

Under this title, a religious organization may require that all applicants and employees conform to the religious tenets of such organization. 15 42 U.S.C. §12113(d)(1) and (d)(2). The clear and unambiguous wording of those coverage exceptions leaves no doubt that the Congress intended for religious employers to be free to make religiously based hiring decisions and religious tenet adherence based employment decisions without regard to the restrictions otherwise imposed by the ADA.