Although no court has yet addressed the issue, it appears from the language and legislative history of the ADA, and also from the EEOC's "interpretive guidance" thereto, that the protection afforded to non-disabled employees who have an association with a disabled person differs in one significant respect from that afforded to disabled employees. This difference is the application of the ADA's "reasonable accommodation" requirements.

In the regulations interpreting the ADA, the term "reasonable accommodation" is defined as:

(ii) Modifications or adjustments to the work environment, or to the manner or circumstances under which the position held or desired is customarily performed, that enable a qualified individual with a disability to perform the essential functions of that position; or

(iii) Modifications or adjustments that enable a covered entity's employee with a disability to enjoy equal benefits and privileges of employment as are enjoyed by its other similarly situated employees without disabilities.

29 C.F.R. § 1630.2(o)(1) (1996). "Reasonable accommodation" may include, but is not limited to:

job restructuring, part-time or modified work schedules, reassignment to a vacant position, acquisition or modification of equipment or devices, appropriate adjustment or modifications of examinations, training materials or policies, the provision of qualified readers or interpreters, and other similar accommodations for individuals with disabilities.

42 U.S.C. § 12111(9)(B) (1994); accord 29 C.F.R. § 1630.2(o)(2)(ii) (1996).

The ADA states that no covered employer "shall discriminate against a qualified individual with a disability because of the disability of such individual

. . . ." 42 U.S.C. § 12112(a). In the context of this general prohibition, the word "discriminate" is a term of art which includes "not making reasonable accommodations." See 42 U.S.C. § 12112(b)(5) (1994); 29 C.F.R. § 1630.9(a) (1996). By the plain terms of § 12112(b)(5), however, the ADA does not require an employer to make any "reasonable accommodation" to the disabilities of relatives or associates of an employee who is not himself disabled.

Specifically, 42 U.S.C. § 12112(b)(5)(A) (1994) defines the term "discriminate" to include "not making reasonable accommodations to the known physical or mental limitations of an otherwise qualified individual with a disability who is an applicant or employee,. . . ." (emphasis added). Further, 42 U.S.C. § 12112(b)(5)(B) (1994) defines "discriminate" to include "denying employment opportunities to a job applicant or employee who is an otherwise qualified individual with a disability, if such denial is based on the need of such covered entity to make reasonable accommodation to the physical or mental impairments of the employee or applicant." (emphasis added). Thus, the plain language of both these provisions--the only two provisions requiring "reasonable accommodation" in Title I of the ADA--suggests that only job applicants or employees, but not their relatives or associates, need be reasonably accommodated.

We are confident that the lack of any reference to the associates or relatives of the employee or applicant in Section 12112(b)(5)'s articulation of the ADA's "reasonable accommodation" requirement is not due to any inadvertent omission. In its Report, the House Education and Labor Committee clearly expressed its intention that under the association provision, "[t]he employer need not provide any accommodation to the nondisabled employee." H.R. Rep. No. 101-485, pt. 2, at 61-62 (1990), reprinted in 1990 U.S.C.C.A.N. 303, 344. See Subpart A, supra.

Our conclusion in this regard has also been reached by the EEOC, which, pursuant to 42 U.S.C. § 12116 (1994), has issued regulations and Interpretive Guidance on the ADA. The Interpretive Guidance notes that where an associate or relative of the employee is disabled, but the employee himself is not disabled:

an employer need not provide the applicant or employee without a disability with a reasonable accommodation because that duty only applies to qualified applicants or employees with disabilities. Thus, for example, an employee would not be entitled to a modified work schedule as an accommodation to enable the employee to care for a spouse with a disability.

29 C.F.R. Pt. 1630.8 app. at 349 (1996) (citing legislative history materials). Thus, Wasatch was not required under the ADA to provide Den Hartog with any "reasonable accommodation" of Nathaniel's disability.

In order to determine whether Den Hartog has presented evidence sufficient to permit a jury to find that he was fired because of his son's disability, we must address how such a claim might be proven. In cases involving general discrimination claims brought under ADA § 102(a), 42 U.S.C. § 12112(a) (1994), this court has adopted the "burden shifting" scheme of McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973). See White v. York Int'l Corp., 45 F.3d 357, 360-61 (10th Cir. 1995). All parties to the present case agree that the McDonnell Douglas framework should similarly be applied to claims of "association discrimination" brought under ADA § 102(b)(4), 42 U.S.C. § 12112(b)(4) (1994). We agree.

Although they agree that McDonnell Douglas applies, the parties suggest different formulations of the elements constituting a prima facie case of "association discrimination" under the ADA. Taking into account the suggestions of both parties and the case law decided under the ADA's generic provisions, we hold that in order to establish a prima facie case of "association discrimination" under ADA § 102(b)(4), 42 U.S.C. § 12112(b)(4), a plaintiff must demonstrate the following:

(1) the plaintiff was "qualified" for the job at the time of the adverse employment action;

(2) the plaintiff was subjected to adverse employment action;

(3) the plaintiff was known by his employer at the time to have a relative or associate with a disability;

(4) the adverse employment action occurred under circumstances raising a reasonable inference that the disability of the relative or associate was a determining factor in the employer's decision.

See Ennis, 53 F.3d at 58 (setting forth similar test, in the context of general disability discrimination claim brought under ADA § 102(a), 42 U.S.C. § 12112(a)). If the plaintiff in an ADA "association discrimination" case can establish these four elements, then the burden shifts to the defendant to proffer a legitimate, nondiscriminatory reason for the adverse employment action. See McDonnell Douglas, 411 U.S. at 802. Once such a reason is proffered, the burden shifts back to the defendant to show that the employer's stated reason is pretextual. See id. at 804.

In the present case, as Den Hartog notes, the court did not articulate these (or any other) elements of a McDonnell Douglas prima facie case. Nonetheless, we do not agree with Den Hartog that the district court's failure to state these elements formally means that Den Hartog was denied the benefit of the McDonnell Douglas framework. Rather, it appears that the court simply presumed that Den Hartog made his prima facie case, and thus proceeded to consider whether the defendants' proffered non-discriminatory reason for terminating Den Hartog--concerns about the "direct threat" posed by Nathaniel's crimes and threats--was pretextual. See Den Hartog, 909 F. Supp. at 1402. The fact that the district court resolved this subsequent question in favor of the defendants does not render harmful to Den Hartog any error that the court may have committed in failing to set forth and apply the elements of the prima facie case.

III. DISABILITY-CAUSED MISCONDUCT UNDER THE ADA

Both the district court and the appellees on appeal have attempted to draw a bright line between discrimination based on a disability (which they concede is generally prohibited by the ADA) and discrimination based on misconduct by the disabled person (which they agree is not prohibited by the ADA). In evaluating that proffered dichotomy, we look to the general provisions of the ADA. However, in looking to the general provisions of the ADA for guidance in this case where the misconduct comes not from the employee but rather from an associated person, we must keep in mind that 1) summary judgment in this case could not be predicated upon misconduct by Den Hartog and 2) Wasatch had no duty to reasonably accommodate Nathaniel's disability.

The text of the ADA makes only one specific reference to "disability-caused misconduct," where an employer is authorized to disregard the fact that the misconduct or prior performance may be caused by a disability and where the employer can hold the disabled person to exactly the same conduct as a non-disabled person. It provides that an employer:

may hold an employee who engages in the illegal use of drugs or who is an alcoholic to the same qualification standards for employment or job performance and behavior that such entity holds other employees, even if any unsatisfactory performance or behavior is related to the alcoholism or drug use of such employee.

42 U.S.C. § 12114(c)(4) (1994); see also 42 U.S.C. § 12114(a) (1994) (providing that the term "qualified individual with a disability" under the ADA shall not include illegal drug users when the covered entity acts on that basis).

Den Hartog claims that because Congress only expressly permitted employers to hold illegal drug users and alcoholics to the same objective standards of conduct as other employees even though their disability causes misconduct or poor performance, Congress implicitly did not intend to extend the same employer prerogative to employees with other disabilities. See Andrus v. Glover Constr. Co., 446 U.S. 608, 616-17 (1980) ("Where Congress explicitly enumerates certain exceptions to a general prohibition, additional exceptions are not to be implied, in the absence of evidence of a contrary legislative intent."). He thus claims that the district court erred by importing the "disability v. disability-caused misconduct" dichotomy into a case in which neither drugs nor alcohol were involved. We agree.

As a general rule, an employer may not hold a disabled employee to precisely the same standards of conduct as a non-disabled employee unless such standards are job-related and consistent with business necessity. See, e.g., EEOC Enforcement Guidance: Psychiatric Disabilities and the Americans With Disabilities Act, 2 EEOC Compl. Man. (BNA), filed after Section 902, at 28 ¶ 30 (Mar. 25, 1997) (stating by way of example that an employer must make some reasonable exception to a general policy requiring employees to be neat and courteous in order to accommodate a mentally disabled employee whose disability led to a deterioration of neatness and courtesy where neatness and courtesy are not essential to that employee's job because it does not involve interaction with customers or co-workers).

Pursuant to 42 U.S.C. § 12114(c)(4), employers need not make any reasonable accommodations for employees who are illegal drug users and alcoholics. However, that is in marked contrast to all other disabilities, where the ADA does require that the employer extend reasonable accommodations. Thus, the disability v. disability-caused conduct dichotomy seems to be unique to alcoholism and drugs.

Further, any such sharp dichotomy would make no sense when considering other provisions of the ADA. For example, an employer need not make any accommodation that would constitute an "undue hardship." 42 U.S.C. § 12112(b)(5)(A) (1994); see also 42 U.S.C. § 12111(10) (1994) (defining "undue hardship" and delineating factors to be considered in determining what constitutes an undue hardship). In addition, an employer may take action against an employee who poses a "direct threat" to the health or safety of other individuals in the workplace. 42 U.S.C. § 12113(b) (1994). The availability of these affirmative defenses establish that there are certain levels of disability-caused conduct that need not be tolerated or accommodated by employers. However, the necessary corollary is that there must be certain levels of disability-caused conduct that have to be tolerated or accommodated. Thus, appellees' effort to put all disability-caused conduct beyond the pale of ADA protection cannot be correct.

Mental illness is manifested by abnormal behavior, and is in fact normally diagnosed on the basis of abnormal behavior. See Diagnostic and Statistical Manual of Mental Disorders 350 (4th ed. 1994) (stating that bipolar disorder may be diagnosed "by the occurrence of one or more Manic Episodes or Mixed Episodes"). To permit employers carte blanche to terminate employees with mental disabilities on the basis of any abnormal behavior would largely nullify the ADA's protection of the mentally disabled.

The district court misinterpreted the holdings of our sister circuits when it stated that "the majority of Circuit Courts of Appeal interpreting [42 U.S.C. § 12112(a)--the basic ADA provision prohibiting discrimination because of disability] have concluded that the 'because of the disability' language requires some discrimination caused by the disability itself and not on misconduct which may be caused by the disability." Den Hartog, 909 F. Supp. at 1401 (citing cases). In fact, all three cases cited by the district court in direct support of this proposition involved either illegal drug using or alcoholic employees, expressly unprotected under 42 U.S.C. § 12114(c)(4) (1994). See Collings v. Longview Fibre Co., 63 F.3d 828, 832 (9th Cir. 1995), cert. denied, 116 S. Ct. 711 (1996) (employees discharged for drug-related misconduct at the workplace); Despears v. Milwaukee County, 63 F.3d 635, 637 (7th Cir. 1995) (alcoholic plaintiff demoted because he lost his driver's license as a result of driving drunk); Maddox v. University of Tenn., 62 F.3d 843, 848 (6th Cir. 1995) (alcoholic plaintiff discharged following arrest for drunk driving). Unlike the three cases cited by the district court, the present case does not involve an application of 42 U.S.C. § 12114(c)(4). For this reason, these cases have only limited relevance to cases, including the present case, in which the plaintiff is not an illegal drug user or alcoholic.

One case cited in indirect support of the district court's proposition, Siefken v. Village of Arlington Heights, 65 F.3d 664 (7th Cir. 1995), did involve a (physically) disabled plaintiff who was neither an illegal drug user nor an alcoholic. In Siefken, a diabetic police officer was terminated after he "erratically drove his squad car at high speed through residential areas some forty miles outside his jurisdiction," while suffering a severe diabetic reaction. Id. at 665. The district court thus correctly characterized Siefken as a case involving a plaintiff terminated on account of "disability-caused misconduct," in which summary judgment in favor of the defendant was affirmed. The Siefken court, however, rested its holding primarily on the issue of causation. Rather than holding that "disability-caused misconduct" is never protected under the ADA, the court simply found that the plaintiff's diabetes was not the proximate cause of his misconduct, but rather was only a "but-for" cause. See id. at 666. It found that the plaintiff's failure to monitor his condition--such failure being within his control and not caused by his disability--was the proximate cause. Id. However, it did not adopt the proposition that "disability-caused misconduct" would never receive protection under the ADA if the conduct was proximately caused by the disability. Other cases and authorities cited by appellant are similarly inapposite.

We therefore disagree with the district court's conclusion that the ADA's general anti-discrimination provision, 42 U.S.C. § 12112(a), contemplates a stark dichotomy between "disability" and "disability-caused misconduct." Rather, the language of the ADA, its statutory structure, and the pertinent case law, suggest that an employer should normally consider whether a mentally disabled employee's purported misconduct could be remedied through a reasonable accommodation. If so, then the employer should attempt the accommodation. If not, the employer may discipline the disabled employee only if one of the affirmative defenses articulated in 42 U.S.C. §§ 12113, 12114 (1994) applies. Otherwise, the employer must tolerate eccentric or unusual conduct caused by the employee's mental disability, so long as the employee can satisfactorily perform the essential functions of his job. See, e.g. EEOC Enforcement Guidance: Psychiatric Disabilities and the Americans With Disabilities Act, 2 EEOC Compl. Man. (BNA), filed after Section 902, at 28 ¶ 30 (Mar. 25, 1997) (stating by way of example that an employer must make an exception to a general policy requiring employees to be neat and courteous in order to accommodate a mentally disabled employee whose job does not involve interaction with customers or co-workers).

We thus proceed to determine whether any such affirmative defenses apply to the present case.

The "direct threat" defense is codified at 42 U.S.C. §§ 12111(3), 12113(b) (1994). Under the ADA, the term "direct threat" means "a significant risk to the health or safety of others that cannot be eliminated by reasonable accommodation." 42 U.S.C. § 12111(3) (1994). Without running afoul of the ADA, an employer may define as a qualification for any job that "an individual shall not pose a direct threat to the health or safety of [the individual himself or] other individuals in the workplace." 42 U.S.C. § 12113(b) (1994); see also 29 C.F.R. § 1630.15(b)(2) (1996) (including "the individual" himself in the definition).

The C.F.R. provides several criteria for determining whether an individual poses a "direct threat." These factors include:

(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.

29 C.F.R. § 1630.2(r) (1996). These factors are to be evaluated "based on an individualized assessment of the individual's present ability to safely perform the essential functions of the job." Id. Further, they are to be evaluated "based on a reasonable medical judgment that relies on the most current medical knowledge and/or on the best available objective evidence." Id.

Because the district court granted summary judgment on the ground that the ADA never protects an employee from being terminated on the basis of his or any of his relatives' or associates' "disability-caused misconduct," it never ruled on the defendants' affirmative defenses that both Den Hartog and Nathaniel were "direct threats" under 42 U.S.C. §§ 12111(3), 12113(b) (1994). Den Hartog, 909 F. Supp. at 1405 n.8. These defenses were fully briefed and argued, however, before both the district court and this court. Because of our disagreement with the district court's resolution of the "disability-caused misconduct" issue, we must now address the application of the "direct threat" defense. See Seibert v. Oklahoma ex rel. Univ. of Okla. Health Sci. Ctr., 867 F.2d 591, 597 (10th Cir. 1989) ("An appellate court may affirm the judgment of a district court on any grounds that find support in the record, provided the litigants have had a fair opportunity to develop the record.").

In the present case, Wasatch and Loftin have alleged that both Den Hartog and Nathaniel were "direct threats" under 42 U.S.C. §§ 12111(3), 12113(b) (1994). In particular, they have alleged that Nathaniel was a "direct threat" in the literal sense, while Den Hartog was a direct threat "insofar as he was unwilling to cooperate in keeping his son Nathaniel off campus and away from Mt. Pleasant."

Den Hartog disputes, as a factual matter, that he was a "direct threat" under the ADA. In addition, Den Hartog argues that the "direct threat" defense is only applicable to employees who constitute a direct threat and it does not, as a matter of law, apply to associates or relatives of an employee who may constitute a direct threat. Further, Den Hartog says there is no evidence of an individualized assessment based on valid medical analysis or objective evidence that Nathaniel posed a direct threat. We consider these arguments in turn.

First, Den Hartog argues that he himself was not a "direct threat" to Wasatch under 42 U.S.C. §§ 12111(3), 12113(b) (1994). In support of this assertion, Den Hartog notes that both Wasatch headmaster Loftin and Wasatch Trustee Park Loughlin testified that they did not consider Den Hartog to pose a direct threat to others at Wasatch. Wasatch and Loftin seek to minimize the significance of this testimony by asserting that Den Hartog was a "direct threat" to Wasatch under 42 U.S.C. §§ 12111(3), 12113(b) (1994) "insofar as he was unwilling to cooperate in keeping his son Nathaniel off campus and away from Mt. Pleasant," even though he posed no risk in his personal capacity to the safety of members of the Wasatch community.

Given the presence in the record of Loftin and Loughlin's testimony stating that Den Hartog did not pose a direct threat to Wasatch, Den Hartog has created at least a genuine issue of material fact as to whether he did pose such a threat. Indeed, the gravamen of the defendants' argument on this issue seems to accuse Den Hartog of being an "indirect threat," rather than a "direct threat." Thus, the defendants are not entitled to summary judgment on the ground that Den Hartog posed a direct threat to Wasatch.

Alternatively, the defendants seek summary judgment on the ground that Nathaniel posed a "direct threat" to Wasatch or Loftin. Den Hartog responds, as a threshold matter, that the evidence in the record supporting the defendants' claim does not meet the evidentiary level established by 29 C.F.R. § 1630.2(r) (1996). Den Hartog predicates this response solely on Loftin's failure to obtain medical evidence prior to deciding that Nathaniel's presence on the Wasatch campus posed a risk to the safety of the members of the Wasatch community. Den Hartog's argument lacks merit.

As Den Hartog correctly asserts, the determination that an individual poses a "direct threat" should be based on an "individualized assessment" that relies on "the most current medical knowledge and/or on the best available objective evidence." 29 C.F.R. § 1630.2(r) (1996). (Emphasis added.) However, 29 C.F.R. § 1630.2(r) does not require an independent medical examination when the available objective evidence is clear. It uses the conjunctive "and/or" between medical knowledge and objective evidence. See 29 C.F.R. Pt. 1630.2(r) app. at 346 (1996) ("The assessment that there exists a high probability of substantial harm . . . must be strictly based on valid medical analyses and/or on other objective evidence."). Loftin's determination that Nathaniel posed a direct threat to the Wasatch community was based on the undisputed objective facts that Nathaniel repeatedly issued direct threats to members of the Wasatch community--including Loftin's own four-year-old daughter--and demonstrated his propensity to carry them out, including breaking the ribs of one of his former schoolmates and engaging in other violent behavior. The threat Nathaniel posed to the security of the Wasatch community objectively appeared to Wasatch and Loftin to be grave in nature, likely to result in harm severe in magnitude, and both imminent and ongoing in duration, thereby satisfying all the factors under 29 C.F.R. § 1630.2(r) (1996). Wasatch and Loftin came to these eminently reasonable conclusions based on their "individualized assessment" of Nathaniel, rather than upon any predetermined or unfounded general stereotypes about people with bipolar affective disorder. See H. R. Rep. No. 101-485, pt. 3, at 45 (1990), reprinted in 1990 U.S.C.C.A.N. 445, 468 ("The purpose of creating the 'direct threat' standard is to eliminate exclusions which are not based on objective evidence about the individual involved. Thus, in the case of a person with mental illness there must be objective evidence from the person's behavior that the person has a recent history of committing overt acts or making threats which caused harm or which directly threatened harm."); see also 29 C.F.R. Pt. 1630.2(r) app. at 346 (1996).

We hold on this record that there is no genuine issue of material fact as to whether Nathaniel posed a significant risk to the safety of members of the Wasatch community.

The legal issue remaining is whether the ADA permits an employer to discipline or discharge a non-disabled employee whose disabled relative or associate, because of his or her disability, poses a direct threat to the employer's workplace. This issue appears to be one of first impression.

As Den Hartog notes, the language of the ADA might be read to suggest that the "direct threat" affirmative defense applies only where the employee poses the direct threat to the workplace, because the defense arises in the context of elaborating upon the permissible "qualification standards" for a job. See 42 U.S.C. § 12113(b) (1994). Job qualifications are expressed in 42 U.S.C. § 12113(a), which clearly refers to employees or job applicants. Job qualifications obviously do not apply directly to associates or relatives of an employee because they are not the ones being employed. However, although the pertinent EEOC regulations and interpretive guidance discuss the "direct threat" defense in terms of a threat to individuals in the workplace, they do not require that the threat come only from the employee, as opposed to the associate or relative of the employee. See 29 C.F.R. §§ 1630.2(r), 1630.15(b)(2) (1996); 29 C.F.R. Pt. 1630 app. at 346-47 (1996).

Although the language of 42 U.S.C. §§ 12111(3), 12113(b) does not expressly cover the present situation, it would be odd that the ADA would permit an employer to take steps to protect its workplace from "direct threats" posed by mentally disabled employees, 42 U.S.C. §§ 12111(3), 12113(b), and also from "direct threats" posed by mentally disabled customers, 42 U.S.C. § 12182(b)(3), but not allow the employer to protect its workplace from "direct threats" posed by mentally disabled associates or relatives of non-disabled employees. Because of the apparent oddness of a statutory scheme which would provide an employer with no recourse against "direct threats" posed by this one small group of individuals, but does provide recourse in all other "direct threat" situations, we feel compelled to search for evidence that Congress intended such a result before holding that result to obtain. See Public Citizen v. United States Dept. of Justice, 491 U.S. 440, 454 (1989) ("Where the literal reading of a statutory term would 'compel an odd result,' we must search for other evidence of congressional intent to lend the term its proper scope.") (internal citation omitted).

In its Committee Report on the ADA, the House Judiciary Committee expressed its intention that the "direct threat" standard should codify the standard applied under the Rehabilitation Act by the Supreme Court in School Bd. of Nassau County v. Arline, 480 U.S. 273, 287-88 (1987). H.R. Rep. No. 101-485, pt. 3, at 34, 45 (1990), reprinted in 1990 U.S.C.C.A.N. 445, 457, 468. In Arline, the Court remanded for further findings of the contagiousness of a schoolteacher who had contracted tuberculosis to determine whether she posed a significant risk of communicating her disease to others in the workplace and whether reasonable accommodation could eliminate that risk. Arline, 480 U.S. at 288-89. Although the schoolteacher there was an employee, the thrust of the case was not whether the threat came from an employee or a relative or associate of an employee, but rather whether the employer was acting upon actual objective evidence of a threat, or upon stereotypical assumptions of the threat. See H.R. Rep. No. 101-485, pt. 3, at 45 (1990), reprinted in 1990 U.S.C.C.A.N. 445, 468.

[A]n employer may not assume that a person with a mental disability . . . poses a direct threat to others. This would be an assumption based on fear and stereotype. The purpose of creating the "direct threat" standard is to eliminate exclusions which are not based on objective evidence about the individual involved. Thus, in the case of a person with mental illness there must be objective evidence from the person's behavior that the person has a recent history of committing overt acts or making threats which caused harm or which directly threatened harm.

Id. at 45-46, 1990 U.S.C.C.A.N. at 468-69.

Elsewhere in the Report, the Committee also expressed its intention that the "direct threat" defense should extend to permit an entity to deny a disabled individual from participating in or benefiting from the goods, services, facilities, privileges, advantages and accommodations of the entity, where the disabled individual poses a direct threat to the health or safety of others. See id. at 62, 1990 U.S.C.C.A.N. at 485. The Committee intended that "[t]his provision [be] identical to one added in the employment section," and advised that "the discussion of this issue there applies here as well." Id. See also 42 U.S.C. § 12182(b)(3) (1994) (codifying this application of the "direct threat" defense).

The legislative history of the association provision, discussed Part IIA, supra, does not discuss any affirmative defenses to claims brought under that provision. In our view, this lack of discussion is most likely due to the Committee's presumption that the affirmative defenses available to employers defending association discrimination claims--including the "direct threat" defense--would be identical to those available in other ADA contexts. This presumption would logically follow from the association provision's location in the ADA, as part of the statutory definition of "discriminate," which appears in the basic anti-discrimination provisions of 42 U.S.C. § 12112(a). See 42 U.S.C.

§ 12112(b)(4).

Our conclusion in this regard is bolstered by the fact that the association provision does not require any "reasonable accommodation," see Part IIB, supra, and therefore provides less protection against discrimination to employees than does the ADA's basic provision, 42 U.S.C. § 12112(a). We see nothing in the legislative history indicating that Congress intended to provide less protection to non-disabled employees with disabled relatives or associates than to disabled employees and job applicants with respect to ADA's central "reasonable accommodation" requirement, yet simultaneously to provide, sub silentio, more protection to non-disabled employees whose disabled relatives or associates posed direct threats to the employees' workplace than to disabled employees and job applicants who posed identical direct threats to the same workplace. We think it far more likely that Congress assumed that 42 U.S.C. § 12113(b)'s "direct threat" defense would apply to cases where the direct threat came from relatives or associates of the employee as well as to those cases where the direct threat came from the employee himself or herself. Cf. Moragne v. States Marine Lines, Inc., 398 U.S. 375, 392 (1970) ("By the terms of a statute, [the legislature] also indicates its conception of the sphere within which the policy is to have effect.").

As with the maritime statutes at issue in Moragne, we think that the language of the association provision of the ADA reflects the dimensions of the particular problem that came to the attention of the legislature and that provision invites "the conclusion that the legislative policy is equally applicable to other situations in which the mischief is identical." Id. at 392. Because the legislative policy underlying the availability of the "direct threat" defense under the primary provisions of the ADA is equally applicable to the association provision, we hold that the ADA permits an employer to discipline or discharge a non-disabled employee whose disabled relative or associate, because of his or her disability, poses a direct threat to the employer's workplace.

Accordingly, the district court's grant of summary judgment in favor of the defendants with respect to Den Hartog's ADA claim is affirmed. Because we hold that the defendant's motive for terminating Den Hartog was lawful, we need not reach Den Hartog's claim pertaining to the defendants' alleged "mixed motives." Similarly, because we affirm the district court's grant of summary judgment in favor of Wasatch and Loftin for the reasons discussed above, we need not consider Wasatch and Loftin's claim that Den Hartog's "wrongful transfer" claim is time-barred under ADA's statute of limitations.

In a motion in limine, Den Hartog challenged the admission of a variety of evidence pertaining to Nathaniel's potential to engage in violent or antisocial conduct. The district court treated Den Hartog's motion as though it were two separate motions: one motion to exclude evidence with respect to the ADA claim, and another motion to exclude the same evidence with respect to the contract claim. It denied the "first" of these two motions as moot, and denied the "second" motion on its merits. Den Hartog appeals the denial of the motion(s) in limine.

We review a ruling on a motion in limine as deferentially as we review a ruling on evidence. See United States v. Flanagan, 34 F.3d 949, 952 (10th Cir. 1994) ("We review the district court's denial of a motion in limine for an abuse of discretion.").

In the present case, the district court correctly noted that most of the challenged documents were admissible under various hearsay exceptions and exemptions articulated in the Federal Rules of Evidence. See Den Hartog, 909 F. Supp. at 1396 n.1. Den Hartog does not articulate any specific challenge to this conclusion. Nor does Den Hartog find any specific faults with the district court's analysis of his motion in limine with respect to his contract claim. We see no basis for concluding that the district court abused its discretion by denying Den Hartog's motion in limine with respect to the contract claim.

Den Hartog also alleges that the district court should not have denied his motion in limine with respect to the ADA claim "as moot." In light of our conclusions set forth in the previous Parts of this opinion, we agree with the district court that Den Hartog's motion in limine was moot with respect to the ADA claim, and in any event, Den Hartog has not made a persuasive showing that such documents should have been disallowed in limine even if the ADA claim had proceeded to trial.

CONCLUSION

The district court's grant of summary judgment in favor of the defendants on Den Hartog's ADA claim is AFFIRMED. The district court's denial of Den Hartog's motion in limine is also AFFIRMED.

It is unclear whether Nathaniel had initiated the trip to Charter Canyon Hospital, or had driven there at Travis's request.

Bipolar disorder has been defined as:

a psychosis involving a mood disorder characterized by swings from mania to depression. Mania is characterized by elevated mood and associated behavioral responses. Characteristics of mania are hyperactivity, optimism, flamboyance, loud, pressured speech, garrulousness, distractibility, delusions of grandeur, disorganized behavior pattern, and poor judgment. Depression is characterized by lowered mood state and related behavior. Characteristics of depression are sadness, hopelessness, feelings of guilt and worthlessness, social withdrawal, psychomotor retardation and vegetative somatic symptoms including anorexia, weight loss, and insomnia. The disability experienced from bipolar disorder ranges from mild to severe.

Taylor v. Principal Financial Group, Inc., 93 F.3d 155, 160-61 n.2 (5th Cir.), cert. denied, 117 S. Ct. 586 (1996) (citing Alan Balsam, M.D. & Albert P. Zabin, Disability Handbook 628-29 (1990)); accord Williamson v. Ward, 110 F.3d 1508, 1515 n.9 (10th Cir. 1997) ("Bipolar disorder is a mood disorder marked by alternating manic and depressive episodes.") (citing 1 J.E. Schmidt, M.D., Attorneys' Dictionary of Medicine B-76 (1996)).

Indeed, in addition to the published opinions addressing this subject, two other courts (including this court), in unpublished orders, have assumed bipolar disorder to be a disability covered under the ADA. See Keoughan v. Delta Airlines, Inc., No. 96-4072, 1997 WL 290961, 113 F.3d 1246 (10th Cir. May 27, 1997) (table); Carrozza v. Howard County, Md., No. 94-1593, 1995 WL 8033, 45 F.3d 425 (4th Cir. Jan. 10, 1995) (table).

It is undisputed that Wasatch and Loftin are "covered entities" within the meaning of 42 U.S.C. §§ 12111(2), 12111(5) (1994).

Tyndall, Rogers, and Ennis are the only three appellate cases decided under the association provision of Title I of the ADA, 42 U.S.C. § 12112(b)(4) (1994). See also Innovative Health Sys., Inc. v. City of White Plains, 117 F.3d 37, 47 (2d Cir. 1997) (applying association provisions of Titles I and III of the ADA, which govern employment discrimination and public accommodations, respectively, to municipal zoning case arising under ADA Title II).

The EEOC Interpretive Guidance provides three examples of forbidden association discrimination: (1) refusal to hire where the employer makes an unfounded assumption that the employee will miss work in order to care for a disabled relative; (2) discharging an employee who does volunteer work with AIDS victims, due to fear that the employee may contract the disease; and (3) denying health benefits to a disabled dependent of an employee but not to other dependents, even where the provision of benefits to the disabled dependent would result in increased health insurance costs for the employer. 29 C.F.R. Pt. 1630.8 app. at 349 (1996).

See Part IVA, infra.

A disabled employee may be held to any performance criteria that are job-related and consistent with business necessity, so long as the disabled employee is given the opportunity to meet such performance criteria by reasonable accommodation. 42 U.S.C. § 12113(a).

Although 42 U.S.C. § 12114(a) (1994) exempts only alcoholism and illegal drug use from disability protection, the ADA also enumerates a number of psychological impairments which are not disabilities and thus cannot give rise to a claim under the ADA. These disorders include transvestism, transsexualism, pedophilia, exhibitionism, voyeurism, gender identity disorders not resulting from physical impairments, other sexual behavior disorders, compulsive gambling, kleptomania, pyromania, and psychoactive substance use disorders resulting from current illegal use of drugs. 42 U.S.C. §§ 12208, 12211(b) (1994). Homosexuality and bisexuality are also identified as being neither impairments nor disabilities. 42 U.S.C. § 12211(a) (1994).

For example, the district court cited a letter from an EEOC Communications Director to a U.S. Senator, which said that:

an employer may hold all employees (i.e., those with and without disabilities) to the same conduct standards. This would certainly include rules prohibiting violence or the threat of violence in the workplace. Although an employer may be required to provide reasonable accommodation (when requested in advance) so that an individual can meet conduct standards, an employer would not be required to rescind discipline for misconduct. Therefore, it appears that this employer could terminate the employee for bringing a loaded gun onto company property, assuming it would impose such discipline on employee without disabilities.

Den Hartog, 909 F. Supp. at 1401 n.7 (quoting Letter of January 4, 1995 from EEOC Communications Director Claire Gonzales to U.S. Sen. John Breaux) (internal punctuation marks omitted). However, far from providing support for an intrinsic dichotomy between disability and "disability-caused misconduct," this letter appears to explain the "direct threat" principle set forth at 42 U.S.C. §§ 12111(3), 12113(b) (1994). See Part IV, infra. Under this principle, an employer may discipline an employee who poses a significant risk to the health or safety of others in the workplace. The fact that an employer may discipline an employee whose "disability-caused misconduct" threatens the safety of others in the workplace, however, does not mean that the employer may discipline an employee whose "disability-caused misconduct" does not pose such a "direct threat" (and does not otherwise violate reasonable job-related qualifications consistent with business necessity or fall within another ADA exception to protection).

The EEOC has supplemented the statutory definition by adding the following words: "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) (1996) (emphasis added to language found in regulation but not in statute).

At least one other circuit court has already filled in a "missing" provision of the ADA, based on Congress's clearly expressed legislative intent. In Innovative Health Sys., Inc. v. City of White Plains, 117 F.3d 37, 47 (2d Cir. 1997), the Second Circuit applied the association provisions of Titles I (employment) and III (public accommodations and services operated by private entities) of the ADA, 42 U.S.C. §§ 12113(b), 12182(b)(3), to a case arising under Title II (public services), which contains no similar provision.