Most critically, the determination must be made on a case-by-case basis. Employers must be prepared to prove a "high probability, of substantial harm; a speculative or remote risk is insufficient." For example, if the threat is due to a behavioral disorder, the employer must identify the specific behavior that would pose a threat and the likelihood of occurrence. If the behavior is quasi-voluntary, such as sexual assault, an assurance by the employee that he is reformed would probably defeat the employer's attempt to prove him unfit. Compliance with the ADA provides no defense, however, if the employee assaults a customer. The injured customer may sue the employer for negligently hiring a known rapist.
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