This petition relates to an enforcement action filed by the U.S. Equal Employment Opportunity Commission (EEOC or Commission) against Old Dominion Freight Line, Inc., under the Americans with Disabilities Act, 42 U.S.C. §§ 12101–12213 (ADA). The EEOC contends that Old Dominion is violating the ADA by maintaining a policy of categorically refusing to reemploy as a truck driver anyone who has suffered from alcoholism – even where the individual is completely rehabilitated and poses no threat to public safety whatsoever. See R.57 (amended complaint). This sort of universal “no return” ban – motivated by understandable safety and liability concerns, but premised on unfounded, generalized suspicions rather than individualized and informed decision-making – runs afoul of both the letter and the spirit of the ADA. Accordingly, the district court has concluded that Old Dominion’s policy is unlawful, and has entered summary judgment in favor of the Commission on this claim. R.140. Old Dominion now attempts to invoke the extraordinary remedy of an interlocutory appeal under 28 U.S.C. § 1292(b) to secure an expedited reversal of the district court’s ruling. But because the ADA plainly prohibits Old Dominion’s policy, there is no “substantial ground” for difference of opinion as to whether the district court’s ruling was correct. Therefore, the petition should be denied.

Old Dominion is a nationwide trucking company that employs thousands of people to drive its tractor-trailer trucks. It is undisputed that Old Dominion has an unwritten but clearly established policy governing drivers who voluntarily report alcohol problems. Old Dominion states in its petition that if a driver voluntarily reports an alcohol problem and that problem is then confirmed by a clinical diagnosis of alcoholism, Old Dominion will never allow that person to drive commercial motor vehicles (CMVs) for the company, even if the person successfully completes all the steps required in the applicable Department of Transportation (DOT) regulations that DOT has indicated should otherwise qualify the individual to return to work as a driver. Pet. at 1 (defendant’s policy is “not returning to driving positions drivers who self-admit to alcohol misuse and who have been diagnosed as suffering from alcoholism”), 9 (same).[1]

Old Dominion hired Charles Grams, the charging party, as a truck driver in late 2004. In late June and early July, 2009, Grams told his supervisor he had an alcohol problem, and a substance abuse professional (“SAP”) found that he met the criteria for alcohol abuse. Applying the challenged policy, Old Dominion required Grams to complete the return-to-duty process prescribed in the DOT regulations, but told him he could never drive trucks for the company again, even if he completed the return-to-duty process successfully. Grams decided not to participate in the outpatient treatment that the SAP recommended (because he could not afford it if he could not return to driving), but he attended Alcoholics Anonymous meetings four times a day. Old Dominion terminated him in late July.

B. Proceedings below

The EEOC originally filed this suit in August 2011. R.1. The Commission alleged that Old Dominion had violated the ADA by (1) failing to reasonably accommodate Grams and firing him because it regarded him as an alcoholic; and (2) maintaining a company-wide unwritten policy that bars any truck driver who reports an alcohol problem from ever driving trucks for the company again. R.57 (amended complaint). Grams intervened as a plaintiff. R.25.[2]

In May 2013, the Commission and Old Dominion filed cross-motions for summary judgment. R.84; R.87. On June 24, 2013, the district court entered an order denying the company’s motion and granting the EEOC’s motion in part by ruling that Old Dominion’s no-return policy violates the ADA as a matter of law. R.138 at 11–13. The court reasoned that the company was relying on the ADA’s “direct threat” defense to justify its policy, but was ignoring the fact that a direct threat exists only if the employer concludes, based on an individualized assessment, that the employee poses “‘a significant risk of substantial harm’” to others’ health or safety and, if so, that the risk “‘cannot be eliminated or reduced by reasonable accommodation.’” R.140 at 12 (quoting 29 C.F.R. § 1630.2(r)). The search for a reasonable accommodation normally requires the employer and the employee to engage in an interactive process. But Old Dominion’s policy, the court ruled, “admits of no such individualized assessment, and provides no such interactive process.” R.140 at 12. The policy amounts, the court held, “to a contention that Old Dominion can completely refuse to consider any and all accommodations for a driver who is disabled by alcoholism,” R.140 at 11, and therefore violates the ADA.

Trial was set to start the following day on the Commission’s separate claim alleging that Old Dominion had failed to accommodate Grams and fired him in violation of the ADA. However, Old Dominion moved the court to amend its order by adding a certification that the order satisfies the three criteria in 28 U.S.C. § 1292(b) for seeking interlocutory appeal. R.141 (transcript of in-chambers proceedings held on June 25, 2013). Over the EEOC’s objection, R.141 at 23, 26, the district court agreed and entered the amended order on June 26. R.140. Old Dominion then filed this timely petition for interlocutory appeal in this Court.

Argument

The petition should be denied because there is no substantial ground for a difference of opinion as to whether Old Dominion’s policy violates the ADA.

A party normally cannot seek appellate review until the district court has entered a final judgment disposing of all claims. See Kassuelke v. Alliant Techsystems, Inc., 223 F.3d 929, 930 (8th Cir. 2000) (discussing final judgment rule and exceptions). The district court has not entered a final judgment in this case. However, 28 U.S.C. § 1292(b) permits a party to seek interlocutory appeal of a non-final district court order if the district court certifies that the order “‘involves a controlling question of law as to which there is substantial ground for difference of opinion and that an immediate appeal from the order may materially advance the ultimate termination of the litigation.’” Union Cnty., Iowa v. Piper Jaffray & Co., 525 F.3d 643, 645 n.1 (8th Cir. 2008) (quoting 28 U.S.C. § 1292(b)). The district court concluded that its ruling – finding that Old Dominion’s “no return” policy violates the ADA as a matter of law – meets these criteria. R.140 at 13. Old Dominion in its petition similarly maintains that all three of these criteria are satisfied here.

However, interlocutory review is to be granted “sparingly and with discrimination” and “used only in exceptional cases where a decision on appeal may avoid protracted and expensive litigation.” White v. Nix, 43 F.3d 374, 376 (8th Cir. 1994). Even where a district court acts within its discretion in certifying an appeal for interlocutory review, the court of appeals has discretion whether to hear the appeal and may deny it for any reason. Union Cnty., 525 F.3d at 645. Here, even assuming the district court’s ruling involves a controlling question of law and an immediate appeal may materially advance the ultimate termination of this litigation, there is no substantial ground for difference of opinion as to the correctness of the district court’s ruling. Id. at 647 (no substantial ground for difference of opinion where, as here, petitioner offers no decisions espousing contrary view). The ADA plainly prohibits employers from maintaining an unyielding policy that forever bans an employee who has abused alcohol or is afflicted with alcoholism from returning to work, without any assessment of whether the individual even continues to pose a safety risk at all – much less whether any lingering concern can be eliminated through reasonable accommodation. Thus, the § 1292(b) criteria are not met, and the petition should be denied.

A. To justify its categorical no-return policy, Old Dominion must meet the “direct threat” standard, which requires an individualized assessment of any risk posed by the employee – and whether that risk can be eliminated or mitigated with reasonable accommodation.

The ADA prohibits employers from classifying their employees “in a way that adversely affects [their job] opportunities” because of their disabilities. 42 U.S.C. § 12112(b)(1). It also bars employers from using qualification standards that screen out persons with disabilities “unless the standard, . . . as used by the covered entity, is shown to be job-related for the position in question and is consistent with business necessity.” 42 U.S.C. § 12112(b)(6). Accordingly, an employer may defend itself against a charge of discrimination by proving that the challenged qualification standard is job-related and consistent with business necessity and that no reasonable accommodation would render the person able to meet the standard. 42 U.S.C. § 12113(a). The ADA also provides that a qualification standard may require that the employee “not pose a direct threat to the health or safety of other individuals.” 42 U.S.C. § 12113(b).

Thus, qualification standards adopted or maintained to promote safety must satisfy this “direct threat” standard. See 29 C.F.R. pt. 1630 app. § 1630.15(b) (“With regard to safety requirements that screen out or tend to screen out an individual with a disability or a class of individuals with disabilities, an employer must demonstrate that the requirement, as applied to the individual, satisfies the ‘direct threat’ standard . . . in order to show that the requirement is job-related and consistent with business necessity.”).[3] This Court has held that the employer “bears the burden of proving direct threat, . . . as the direct threat defense is an affirmative defense.” EEOC v. Wal-Mart Stores, Inc., 477 F.3d 561, 571–72 (8th Cir. 2007) (citing cases); see also Jarvis v. Potter, 500 F.3d 1113, 1122 (10th Cir. 2007) (citing cases).

Because of the “prejudice, stereotypes, [and] unfounded fear” surrounding many disabilities, School Board of Nassau County v. Arline, 480 U.S. 273, 287 (1987), the legal standard for establishing a direct threat defense is high. A direct threat is “‘a significant risk to the health or safety of others that cannot be eliminated by reasonable accommodation.’” Wal-Mart Stores, 477 F.3d at 571 (quoting 42 U.S.C. § 12111(3)). The EEOC’s regulations implementing the ADA further explain that the employer must show that there is 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.” 29 C.F.R. § 1630.2(r). “Significant risk” means a “high probability of substantial harm; a speculative or remote risk is insufficient.” 29 C.F.R. pt. 1630 app. § 1630.2(r). Thus, the key inquiry for the direct threat analysis is not “whether a risk exists, but whether it is significant.” Bragdon v. Abbott, 524 U.S. 624, 649 (1999) (emphasis added).

In order to determine whether an employee poses such a risk, employers must make “an individualized assessment of the individual’s present ability to safely perform the essential functions of the job” based on “reasonable medical judgment . . . or the best available objective evidence.” 29 C.F.R. § 1630.2(r); Wal-Mart Stores, Inc., 477 F.3d at 571. Four factors guide this determination: “(1) the duration of the risk; (2) the nature and severity of the potential harm; (3) the likelihood that the potential harm will occur; and (4) the imminence of the potential harm.” Arline, 480 U.S. at 287; see also 29 C.F.R. § 1630.2(r). If an employer determines that an employee does pose a significant risk of substantial harm, the employer must then determine whether a reasonable accommodation could eliminate the risk or reduce it to an acceptable level. Nunes v. Wal-Mart Stores, Inc., 164 F.3d 1243, 1248 (9th Cir. 1999); 29 C.F.R. § 1630.2(r); see 29 C.F.R. pt. 1630 app. § 1630.2(r).

This “direct threat” defense, with its guarantee of individualized assessments of risk and reasonable accommodation, is central to the statutory scheme. In enacting the ADA, Congress recognized that employers often wrongly exclude persons with disabilities from employment because of misplaced concerns about safety or liability. See H.R. Rep. No. 485, 101st Cong., 2d Sess., Pt. 3, at 30–31 (House Judiciary Comm.). Accordingly, an employer’s good-faith belief that an employee posed a direct threat is insufficient to establish the direct-threat defense. Bragdon, 524 U.S. at 649-50 (employer’s “belief that a significant risk existed, even if maintained in good faith, would not relieve him from liability; . . . [and] courts should assess the objective reasonableness of the [employer’s] views”).

B. Old Dominion’s policy violates the ADA.

Old Dominion does not deny – indeed it admits – that its policy purposely prohibits (even recovered and rehabilitated) alcoholics from ever returning to truck-driving jobs. Pet. at 1, 3, 4, 5, 9, 13-15. Alcoholism is a disease and a disability covered under the ADA. Miners v. Cargill Commc’ns, Inc., 113 F.3d 820, 823 n.5 (8th Cir. 1997).^{^[4]} Old Dominion’s “no return” policy thus classifies the company’s employees in a way that adversely affects their opportunities because of their disability and it is a qualification standard that undeniably “screens out” individuals with disabilities. See 42 U.S.C. § 12112(b)(1) & (b)(6). Further, Old Dominion justifies the policy solely on safety grounds. See Pet. at 1, 3, 4, 5, 6, 7, 11, 12-13, 14 (referring repeatedly to its “safety policy”); cf. id. at 3 (noting it would allow Grams to return to only a non-driving position due to “safety reasons and concerns about possible relapse). Accordingly, under the plain language of the ADA, Old Dominion’s policy is unlawful unless it satisfies the ADA’s “direct threat” standard. Old Dominion does not contend otherwise.

Indeed, Old Dominion asserts that its policy is essential to avoid alcoholic drivers from posing a threat to public safety. Old Dominion notes, quite rightly, that it has “a duty to ensure the safe operation of its commercial motor vehicles and to prevent accidents involving fatalities, personal injury, and property damage.” Pet. at 9. However, Old Dominion then contends that there is a high rate of recidivism with alcoholism, that it cannot predict who will or will not relapse, and that it cannot monitor drivers once they are on the road. Id. From this, the company concludes, “[t]here is the potential for catastrophic consequences from accidents involving commercial motor vehicles traveling at highway speeds.” Id. And this potential, Old Dominion asserts, relieves it of all responsibility for conducting any individualized assessment into whether a particular recovered and rehabilitated alcoholic can safely return to a truck-driving job. Id.

As a matter of law, this showing fails to clear the high statutory “direct threat” hurdle, and Old Dominion’s policy thus violates the ADA. Old Dominion has unilaterally decided that it need not conduct individualized assessments of any alcoholic employee who would seek to return to truck driving. Its approach has no basis in the statute or in sound policy.

According to Old Dominion, the EEOC’s and the district court’s reading of the ADA demands an “impossible individualized assessment” and requires it to “speculat[e] on the likelihood of whether [an individual] would relapse while driving on the country’s highways.” Pet. at 13; see also id. at 15 (“The EEOC and the district court would require Old Dominion to put Grams back to work as a driver without any reliable prediction that he will remain sober, and then have the motoring public and Old Dominion suffer the consequences if he is involved in an accident as the result of a relapse.”) Hyperbole aside, the Commission, which itself litigates in the public interest, would seek no such thing. More to the point, the ADA requires nothing of the sort. The statutory scheme, through the direct-threat defense, balances concerns for public safety with promoting the employment of qualified workers with disabilities. Old Dominion simply fundamentally misunderstands its obligations under the ADA.

It argues that the district court “essentially elevated the accommodation provisions of the ADA over the ADA’s business necessity defense . . . .” Pet. at 14; see also id. at 15 (arguing that the district court held that “the duty to accommodate overrode the business necessity defense”). But this gets the law precisely backwards. The ADA actually incorporates a “reasonable accommodation” obligation into the business-necessity defense. Employers with safety policies that screen out individuals with disabilities (including alcoholics) cannot justify the use of such policies unless they demonstrate that such policies are necessary to avoid a “direct threat” and that in each individual case the direct threat could not be eliminated or reduced with a reasonable accommodation. The ADA could not be clearer on this point. Old Dominion points to no case law or regulation remotely suggesting otherwise.

Yet Old Dominion has done exactly the opposite of what the ADA requires. It presumes any individualized assessment is impossible, and asserts that its refusal to conduct such assessments must therefore be a business necessity. As a matter of corporate policy, it refuses to even entertain the idea of engaging in an individualized assessment to determine whether a particular recovered alcoholic might safely return to truck driving. Instead, the company policy pretermits the requisite particularized inquiry, and treats all alcoholics the same – essentially as ticking time-bombs, inherently volatile and likely to relapse, and hence incapable of safely performing truck-driving jobs. While this over-inclusive, one-size-fits-all approach may be easier for Old Dominion to administer, it also allows the company to rely on the sort of myths, fears, and stereotypes the ADA prohibits. See, e.g., Arline, 480 U.S. at 284 (“The Act is carefully structured to replace such reflexive reactions to actual or perceived [disabilities] with actions based on reasoned and medically sound judgments . . . .”).

Indeed, the Department of Transportation and the Federal Motor Carrier Safety Administration, the federal entities specifically entrusted with protecting the public from safety threats posed by CMVs, have adopted and are currently enforcing a very detailed set of regulations that presume that individualized assessments of drivers with alcohol problems who successfully complete a regulatory return-to-duty process are possible and do adequately protect public safety. See 40 C.F.R. §§ 40.285(a), 40.305(b). Old Dominion and its drivers must comply with these regulations.

Once these regulations are triggered, the driver must be evaluated by a certified substance abuse professional (“SAP”). If the SAP finds that the driver has an alcohol problem, the driver must participate in and successfully complete any treatment and education programs the SAP recommends and then return to the SAP for re-evaluation. 49 C.F.R. § 40.291. If and when the SAP finds the driver in successful compliance and the driver passes a return-to-duty alcohol test, the trucking company may reinstate the driver. 49 C.F.R. §§ 40.301, 40.305. DOT has labeled this process a “return-to-duty process.” 49 C.F.R. pt. 40, subpart O (entitled: “Substance Abuse Professionals and the Return-to-Duty Process”). The regulations do not require trucking companies to reinstate drivers who successfully complete all the steps in this return-to-duty process. Rather, they give the employer the authority and the discretion to make the reinstatement decision, subject, of course, to “other legal requirements.” 49 C.F.R. § 40.305(b).

The ADA is one of those “other legal requirements.” Thus, the discretion of employers like Old Dominion to refuse to return individuals to truck-driving jobs is constrained by the ADA’s requirements – including the statute’s mandate that employers engage in individualized assessments in order to justify the application of broad-based safety policies. In light of these regulations promulgated by the federal agencies entrusted to ensure public safety in Old Dominion’s industry, the company’s claims that it is simply incapable of conducting such individualized assessments – and that it cannot safely return any alcoholic to a truck-driving job – ring particularly hollow. For if it were true, as Old Dominion asserts, that employers “cannot predict which alcoholic drivers will pose a substantial risk to the motoring public,” Pet. at 15, the DOT regulations would presumably not allow employers even the discretion to return recovered alcoholics to truck-driving jobs.

Further, Old Dominion is incorrect in asserting that the district court’s ruling (and EEOC’s position) would require it to “guess who will relapse, endangering the motoring public if it guesses incorrectly.” Pet. at 16. Quite the contrary, the ADA prohibits Old Dominion from engaging in “guesswork” of any kind in making employment decisions. Instead, the direct-threat analysis involves a particularized assessment of each employee’s unique condition, history, and situation. It mandates decision-making “based on a reasonable medical judgment that relies on the most current medical knowledge and/or on the best available objective evidence.” 29 C.F.R. § 1630.2(r); see also 29 C.F.R. pt. 1630 app. § 1630.2(r): Direct Threat (“Determining whether an individual poses a significant risk of substantial harm to others must be made on a case by case basis” and “must rely on objective, factual evidence – not on subjective perceptions, irrational fears, patronizing attitudes, or stereotypes – about the nature or effect of a particular disability, or of disability generally.”). In any given case, this assessment may result in the conclusion that a particular employee poses a direct threat that cannot be eliminated or mitigated with any reasonable accommodation. But the ADA does not permit Old Dominion to avoid this critical statutory step by enforcing an across-the-board ban on the return of all alcoholics to truck-driving jobs.

Conclusion

The Commission recognizes the compelling need to maintain motor carrier safety. But under Old Dominion’s understanding of the ADA, employers could categorically exclude entire classes of people with disabilities based on broad and unsubstantiated safety fears. Through the direct-threat defense, the drafters of the ADA balanced the need to guard against potential perils posed by certain disabilities (such as alcoholism) with the rights of those with such conditions to be treated as individuals and judged on their own merits and abilities. The fact that Old Dominion may have misinterpreted its own obligations under the Act cannot support its contention that there is “substantial ground” for difference of opinion as to whether its policy violates the statute. The Commission therefore respectfully urges this Court to deny Old Dominion’s petition.

[1] The company misstates the challenged policy. The record evidence shows that Old Dominion’s actual policy was to disqualify permanently any driver who reports an alcohol problem, whether the problem was subsequently confirmed by a clinical diagnosis or not. Stoddard dep. at 44, 48, 95–96. The district court found that “Old Dominion has an unwritten policy that it will not allow a driver who has self-disclosed an alcohol problem to ever return to driving status.” R.140 at 4. Either version of the policy would violate the ADA, for the reasons discussed in the text.

[2] In its Petition, Old Dominion references facts related primarily (if not exclusively) to the claim the Commission is bringing to secure individual relief for Grams. See, e.g., Pet. at 14–15 n.5. However, that claim is not the basis for Old Dominion’s request for § 1292(b) relief. See R.141 (seeking review of the district court’s ruling as to the legality of Old Dominion’s policy). For purposes of deciding whether interlocutory appeal is appropriate, this Court need not address whether Old Dominion has violated Gram’s ADA rights, specifically. Indeed, the district court was poised to conduct a trial to resolve that claim when Old Dominion moved for certification of an interlocutory appeal.

[3] Some courts have questioned or disagreed with this rule. See, e.g., Albertson’s, Inc. v. Kirkingburg, 527 U.S. 555, 569 n.15 (1999) (declining to decide the issue); EEOC v. Exxon Corp., 203 F.3d 871, 874–75 (5th Cir. 2000) (holding that employers defending generally applicable safety-based qualification standards must show that they are job-related and consistent with business necessity under 42 U.S.C. § 12113(a), not that they meet the direct threat standard of § 12113(b)). But even courts that have declined to apply a strict “direct threat” standard require a particularized assessment of risk and consideration of reasonable accommodation. See Exxon Corp., 203 F.3d at 875 (explaining that whichever of the two standards is applied, “the proofs will ensure that the risks are real and not the product of stereotypical assumptions,” and applying § 12113(a), which on its face requires reasonable accommodations to enable people with disabilities to meet the legitimate goals the standard is designed to achieve); see also Bates v. United Parcel Serv., Inc., 511 F.3d 974, 992–93 (9th Cir. 2007) (en banc) (if employer adopts safety-based qualification standard that is stricter than that mandated by law, it bears burden of proving the standard complies with § 12113(a), including the reasonable-accommodation requirement). Moreover, Old Dominion seeks to justify the challenged policy primarily by arguing that drivers with alcohol problems inevitably pose a significant risk to public safety. In ADA terms, the company is relying on the direct threat defense.

[4] Alcoholism differs from other disabilities in several respects. The ADA expressly authorizes employers to hold alcoholic employees to the same standards of performance and behavior as other employees, require that employees not be under the influence of alcohol in the workplace, and require that employees comply with the regulations of the Department of Transportation that govern their industry or their individual sensitive positions. Miners, 113 F.3d at 823 n.5; 42 U.S.C. §§ 12114(c)(2), (c)(4), & (c)(5)(C).