Amicus Curiae Brief — Chevron USA Inc. v. Echazabal

| Supreme Sour tig

SILER |

(3) |

Ne, SEP 26 2001 |

No. 00-1406

CHEVRON U.S.A., INC., PETITIONER

v.

MARIO ECHAZABAL

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

BRIEF FOR THE UNITED STATES

AS AMICUS CURIAE

THEODORE B. OLSON

Solicitor General

Counsel of Record

NICHOLAS M. INZEO ROBERT D. MCCALLUM, JR.

— Deputy General Assistant Attorney General

pene PAUL D. CLEMENT

— B. oo - Deputy Solicitor General

unesudeenesedenenes MATTHEW D. ROBERTS

CAROLYN L. WHEELER Assistant to the Solicitor

Assistant General Counsel General

ROBERT J. GREGORY MARLEIGH D. DOVER

Senior Attorney MATTHEW M. COLLETTE

Equal Employment Attorneys

Opportunity Commission

Washington, D.C. 20507 Department of Fustios

Washington, D.C. 20530-0001

(202) 514-2217

QUESTION PRESENTED

Whether the Americans with Disabilities Act of 1990

(ADA), 42 U.S.C. 12101 et seg., permits an employer to

refuse to hire an individual because his performance of

the job will, as a result of his disability, pose a direct

threat to his own health or safety.

(I)

TABLE OF CONTENTS

Page

Statement 1

Di aa 3

I. The court of appeals erred in invalidating the

EEOC’s regulations 8

A. The EEOC’s threat-to-self regulations are

consistent with the text of the ADA .............000+ i]

B. The court of appeals’ reliance on the

expressio UNiUSs CANON WAS EITONEOUS .............-+. 11

C. The EEOC’s threat-to-self regulations are a

reasonable interpretation of the ADA .............. 14

II. The court of appeals’ decision warrants this

Court’s review 16

Conclusion 19

TABLE OF AUTHORITIES

Cases:

Borgialli v. Thunder Basin Coal Co., 235 F.3d 1284

(10th Cir. 2000) 17

Bragdon v. Abbott, 524 U.S. 624 (1998) 15

Burkett v. United States Postal Serv., 175 F.R.D.

220 (N.D. W.Va. 1997) - 18

Burns v. United States, 501 U.S. 129 (1991) ................... 12-13

Cheney R.R. v. ICC, 902 F.2d 66 (D.C. Cir.),

cert. denied, 498 U.S. 985 (1990) 13

Chevron U.S.A. Inc. v. Natural Res. Def.

Council, Inc., 467 U.S. 887 (1984) 6, 10, 11

Cobb v. Summers, Appeal No. 01965074, 2000 WL

366115 (EEOC Apr. 3, 2000) .........ssessssesvssesnssessesnssesessesees 18

Daugherty v. City of El Paso, 56 F.3d 695 (5th Cir.

1995), cert. denied, 516 U.S. 1172 (1996) .......cvcsesvseesvesees 7

EEOC v. Amego, Inc., 110 F.3d 135 (1st Cir. 1997) ........ 7

Federal Land Bank v. Bismarck Lumber Co., 314

U.S. 95 (1941) ;, 12

(IID)

IV

Cases—Continued:

Ford v. United States, 273 U.S. 593 (1927)

Haug v. Runyon, Appeal No. 01951337, 1998 WL

25247 (EEOC Jan. 9, 1998)

Koshinski v. Decatur Foundry, Inc., 177 F.3d 599

(7th Cir. 1999)

LaChance v. Duffy's Draft House, Inc., 146 F.3d

832 (11th Cir. 1998)

Mantolete v. Bolger, 767 F.2d 1416, amended by 38

Fair Empl. Prac. Cas. (BNA) 1517 (9th Cir. 1985) ..........

Martini v. Federal Nat'l Mortgage Ass'n, 178 F.3d

1336 (D.C. Cir. 1999), cert. dismissed, 528 U.S. 1147

(2000)

McClaren v. Dalton, Appeal No. 01960820, 1997

WL 774840 (EEOC Dec. 5, 1997)

Merrell v. Pirie, Appeal No. 01971565, 2001 WL

237043 (EEOC Mar. 2, 2001)

Moses v. American Nonwovens, Inc., 97 F.3d 446

(11th Cir. 1996), cert. denied, 519 U.S. 1118

(1997)

Patterson v. Summers, Appeal No. 01964964, 2000

WL 366113 (EEOC Apr. 3, 2000)

Pauley v. BethEncrgy Mines, Inc., 501 U.S. 680

(1991)

Pension Benefit Guar. Corp. v. LTV Corp., 496 U.S.

633 (1990)

Pfizer Inc. v. Government of India, 434 U.S. 308

(1978)

Stallings v. Summers, Appeal No. 01964963, 2000

WL 366114 (EEOC Apr. 3, 2000)

Sutton v. United Air Lines, Inc., 527 U.S. 471

(1999)

United States v. Mead Corp., 121 S. Ct. 2164

(2001)

6, 8, 16

10

10

V

Case—Continued: Page

United States v. New York Tel. Co., 434 U.S. 159

(1977) 12

Statutes and regulations:

Americans with Disabilities Act of 1990, 42 U.S.C.

12101 et seg. 1, 2, 8, 10

42 U.S.C. 12101(a)(5) 15

42 U.S.C. 12101(a)(7) 15

Tit. I:

42 U.S.C. 12111(3) 2,5, 9,12

42 U.S.C. 12111(8) 1,7

42 U.S.C. 12112(a) 1, 7, 16,17

42 U.S.C. 12112(b)6) 2,9,11

42 U.S.C. 12113(a) 2,9, 11,12

42 U.S.C. 12113(b) 2,5, 9,11, 12

42 U.S.C. 12116 2,10

Tit. V, 42 U.S.C. 12201 15

Rehabilitation Act of 1973, 29 U.S.C. 791-794 (1994 &

Supp. V 1999) 15

29 C.F.R. Pt. 1630:

Section 1630.2(r) 3, 6, 8, 9, 16, 17

Section 1630.15(b)(1) 2-3

Section 1630.15(b)(2) 3, 6,9

App. § 1630.15(b) 14

Miscellaneous:

H.R. Rep. No. 485, 101st Cong., 2d Sess. Pt. 2 (1990) ........ 14

136 Cong. Rec. 17,377 (1990) 6, 13, 16

56 Fed. Reg. (1991):

p. 35,726 2,9

p. 35,745 15

2A Norman J. Singer, Statutes and Statutory Con-

struction (6th ed. 2000) 12

In the Supreme Court of the Anited States

No. 00-1406

CHEVRON U.S.A., INC., PETITIONER

v.

MARIO ECHAZABAL

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

BRIEF FOR THE UNITED STATES

AS AMICUS CURIAE

This brief is submitted in response to the Court’s

order inviting the Solicitor General to express the

views of the United States.

STATEMENT

1. Title I of the Americans with Disabilities Act of

1990 (ADA), 42 U.S.C. 12101 et seqg., prohibits an em-

ployer from discriminating against a “qualified individ-

ual with a disability.” 42 U.S.C. 12112(a). A “qualified

individual with a disability” is a disabled individual

“who, with or without reasonable accommodation, can

perform the essential functions of the employment

position.” 42 U.S.C. 12111(8). The ADA defines “dis-

criminate” to include “using qualification standards,

employment tests or other selection criteria that screen

(1)

2

out or tend to screen out an individual with a disability

or a class of individuals with disabilities 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 is consistent with business

necessity.” 42 U.S.C. 12112(b)(6).

A section entitled “Defenses” clarifies that “(i]t may

be a defense to a charge of discrimination under [the

ADA) that an alleged application of qualification stan-

dards, 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.” 42 U.S.C. 12113(a). That section spe-

cifically provides that the “term ‘qualification stan-

dards’ may include a requirement that an individual

shall not pose a direct threat to the health or safety of

other individuals in the workplace.” 42 U.S.C. 12113(b).

The ADA defines “direct threat” as “a significant risk

to the health or safety of others that cannot be

eliminated by reasonable accommodation.” 42 U.S.C.

12111(8).

The ADA requires the Equal Employment Opportu-

nity Commission (EEOC) to issue regulations to carry

out the provisions of Title I, 42 U.S.C. 12116, and the

EEOC, following public notice and comment, has issued

regulations pursuant to that mandate, 56 Fed. Reg.

35,726 (1991). Consistent with the statutory text, the

regulations provide that an employer may defend

against a charge that a qualification standard improp-

erly screens out disabled individuals by showing that

the standard is “job-related and consistent with busi-

ness necessity, and such performance cannot be accom-

plished with reasonable accommodation.” 29 C.F.R.

3

1630.15(b)(1). In elaborating on that defense, the

regulations state that “(t]he term ‘qualification stan-

dard’ may include a requirement that an individual shall

not pose a direct threat to the health or safety of the

individual or others in the workplace.” 29 C.F.R.

1630.15(b)(2). Accordingly, the regulations define

direct threat to mean “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).

2. From 1972 until 1996, respondent Mario Echaza-

bal worked at an oil refinery owned by petitioner

Chevron U.S.A., Inc., as an employee of various main-

tenance contractors. In 1992, respondent applied to

work directly for petitioner in the refinery’s coker unit.

Petitioner made respondent an offer of employment

contingent upon his passing a physical examination.

The examination revealed that respondent’s liver was

releasing certain enzymes at a higher than norma! level.

Based on that examination, petitioner concluded that

respondent’s liver might be damaged by exposure to

the solvents and chemicals present in the coker unit.

Petitioner therefore rescinded the job offer. Pet. App.

2a.

After learning of the enzyme test results, respondent

consulted several doctors. He was eventually diag-

nosed with asymptomatic, chronic active Hepatitis C, a

viral infection of the liver. Pet. App. 3a, 35a. Respon-

dent continued to work throughout the refinery (includ-

ing in the coker unit) as an employee of petitioner’s

maintenance contractor. /d. at 2a.

In 1995, respondent again applied to petitioner for a

position in the coker unit. Petitioner again made re-

spondent an offer contingent on a physical examination.

Pet. App. 3a. The examining physician concluded that

4

further exposure to hepatotoxic chemicals and solvents

like those used in the coker unit would seriously en-

danger respondent’s health and, in certain circum-

stances, could be fatal. Jd. at 38a; C.A. App. 81-82.

Petitioner’s medical director agreed that respondent

could not work in the coker unit without risk to his own

health. Pet. App. 38a. Based on the doctors’ findings,

petitioner refused to hire respondent. Jd. at 3a.

Petitioner also instructed its maintenance contractor to

ensure that respondent was not exposed to solvents

and chemicals; and, as a result, respondent could no

longer work at the refinery. /bid.

3. a. Respondent then brought this action in state

court alleging, among other things, that petitioner and

its maintenance contractor had discriminated against

him on the basis of a disability, in violation of the ADA.

Pet. App. 3a. Petitioner removed the case to the

United States District Court for the Central District of

California. Jd. at 33a. The district court granted sum-

mary judgment in favor of petitioner on all of respon-

dent’s claims. Jd. at 32a-57a. On the ADA c.uim, the

district court found that petitioner’s refusal to hire

respondent was lawful because, as a result of respon-

dent’s liver condition, his working in the refinery would

have posed a direct threat to his health. Jd. at 46a-52a.

The district court stayed the proceedings against the

maintenance contractor, and certified several issues for

appeal, including the propriety of the grant of summary

judgment on the ADA claim. /d. at 3a-4a.’

1 In the district court, respondent presented medical evidence

that the court described as “raising a genuine issue that despite

elevated liver enzyme levels, [respondent]’s liver function was

normal, and that the substances to which he would be exposed in

the position [in the coker unit] posed no greater a danger to

[respondent] than to other workers.” Pet. App. 48a. The district

5

b. The United States Court of Appeals for the Ninth

Circuit reversed. Pet. App. la-18a. The court first held

that the ADA does not provide an affirmative defense

permitting an employer “to refuse to hire an applicant

on the ground that the individual, while posing no

threat to the health or safety of other individuals in the

workplace, poses a direct threat to his own health or

safety.” Id. at 5a. The court found the language of the

ADA “dispositive” of that question. Jd. at 6a. The

court noted that the statutory language provides that

an employer may impose, as a qualification standard, a

“requirement that an individual shall not pose a direct

threat to the health or safety of other individuals in the

workplace.” bid. (quoting, in part, 42 U.S.C. 12113(b)).

Relying on the maxim of statutory construction ez-

pressio unius est exclusio alterius, the court reasoned

that, “by specifying only threats to ‘other individuals in

the workplace,’ the statute makes if clear that threats

to other persons—including the disabled individual

himself—are not included within the scope of the

defense.” Jd. at 6a-7a. The court also found support in

the ADA’s definition of “direct threat” to mean “a

significant risk to the health or safety of others that

cannot be eliminated by reasonable accommodation.”

Id. at 7a (quoting 42 U.S.C. 12111(8)).

The court further concluded that the ADA’s legisla-

tive history reinforces that the direct threat defense

excludes threats to oneself. Pet. App. 7a. The court

noted that the legislative history contains numerous

court discounted that evidence, however, because the evaluations

on which it was based were not performed until after the alleged

discrimination. /bid. The EEOC filed an amicus brief in the court

of appeals in which the EEOC argued that the district court erred,

but the court of appeals did not reach that issue, and it is not

presented by the petition for a writ of certiorari.

6

references to “direct threat” in relation to others, but

the term “direct threat” is never “accompanied by a

reference to eats to the disabled person himself.” /d.

at 7a-8a. The court also relied on a floor statement by

Senator Kennedy that “employers may not deny a

person an employment opportunity based on

paternalistic concerns regarding the person’s health.”

Id. at 8a (quoting 136 Cong. Rec. 17,377 (1990)). The

court acknowledged that a discussion in a House of

Representatives Committee Report supports the exis-

tence of a defense based on a threat to the employee’s

own health, but the court concluded that the discussion

was “somewhat ambiguous” and “outweighed by the

substantial evidence to the contrary” elsewhere in the

legislative history. Jd. at 9a n.6.

In reaching its conclusion, the court invalidated the

EEOC’s regulations providing that an employer may

establish as a “‘qualification standard’ * * * a require-

ment that an individual shall not pose a direct threat to

the health or safety of the individual or others in the

workplace.” 29 C.F.R. 1630.15(b)(2) (emphasis added);

see also 29 C.F.R. 1630.2(r). The court analyzed the

regulations under Chevron U.S.A. Inc. v. Natural

Resources Defense Council, Inc., 467 U.S. 837, 842-843

(1984), Pet. App. lla-12a & n.8, but found them “con-

trary” to the ADA’s text. In the court’s view, “the

language of the direct threat defense plainly expresses

Congress’s intent to include within the scope of [the]

defense only threats to other individuals in the

workplace.” Jd. at 12a.

The court acknowledged that its conclusion conflicts

with the decision of the United States Court of Appeals

for the Eleventh Circuit in Moses v. American Non-

wovens, Inc., 97 F.3d 446, 447 (1996) (per curiam), cert.

denied, 519 U.S. 1118 (1997). Pet. App. 6a. The court

7

also noted that its decision is inconsistent with dicta

in three other circuit court decisions. /bid. (citing

LaChance v. Duffy’s Draft House, Inc., 146 F.3d 832

(11th Cir. 1998); EEOC v. Amego, Inc., 110 F.3d 135

(1st Cir. 1997); Daugherty v. City of El Paso, 56 F.3d

695 (5th Cir. 1995), cert. denied, 516 U.S. 1172 (1996)).

The court of appeals next addressed petitioner’s con-

tention that, “even if the direct threat provision does

not provide ic with a defense to its actions,” respondent,

“because of the risk of damage to his liver, * * * is not

‘otherwise qualified’ to perform the job at issue.” Pet.

App. 14a. The court acknowledged that an individual

who, because of his disability, is unable to perform the

“essential functions of the employment position that

such individual holds or desires” (42 U.S.C. 12111(8)) is

not a “qualified individual” (42 U.S.C. 12112(a)) under

the ADA and, therefore, is not protected by the statute.

Pet. App. 14a. In this case, however, the court ex-

plained, there is no evidence “that the risk [respondent]

allegedly poses to his own health renders him unable to

perform [the job] duties.” Jd. at 17a. Rather, the

evidence shows that respondent had successfully per-

formed work in the coker unit for years. “Had [he]

failed during that period to perform the essential

functions of his work, we seriously doubt that [peti-

tioner] would have twice extended him contingent

offers to work at the coker unit.” /d. at 18a. The court

concluded that whatever risk respondent’s “employ-

ment might pose to his own health” in the future, it

“does not affect the question whether he is a ‘qualified

individual with [a] disability.’” Ibid.

Judge Trott dissented, calling the majority’s decision

a “Pickwickian ruling” that “leads to absurd results.”

Pet. App. 23a. Judge Trott both disagreed with the

majority’s conclusion that respondent is a “qualified

8

individual” and noted that “[petitioner] has a defense to

this action, known as the ‘direct threat’ defense.” Jd. at

22a. He stressed that the “EEOC’s implementing

regulations, authorized by Congress, define[] a ‘direct

threat’ to mean ‘a significant risk of substantial harm to

the health or safety of the individual * * * that cannot

be reduced by reasonable accommodation.’” Ibid.

(quoting 29 C.F.R. 1630.2(r)). Judge Trott would have

deferred to the EEOC’s regulations because “the

EEOC has rationally and humanely spoken.” /bid.

DISCUSSION

This Court should grant the petition for a writ of

certiorari. The court of appeals incorrectly held that

the ADA forecloses the affirmative defense that a

disabled individual’s performance of the job would pose

a significant risk of substantial harm to his own health

or safety. In so doing, the court erroneously invali-

dated EEOC regulations that recognize that defense

and created a conflict with the decision of the Eleventh

Circuit in Moses v. American Nonwovens, Inc., 97 F.3d

446 (1996) (per curiam), cert. denied, 519 U.S. 1118

(1997). The issue is an important one, and its resolution

by this Court is warranted.

I. THE COURT OF APPEALS ERRED IN INVALI-

DATING THE EEOC’S REGULATIONS

A. The EEOC’s Threat-To-Self Regulations Are Con-

sistent With The Text Of The ADA

Title I of the ADA prohibits an employer from “using

qualification standards, employment tests or other

selection criteria that screen out or tend to screen out

an individual with a disability or a class of individuals

with disabilities unless the standard, test or other

selection criteria, as used by the covered entity, is

9

shown to be job-related for the position in question and

is consistent with business necessity.” 42 U.S.C.

12112(b)(6) (emphasis added). The statute clarifies that

“(ijt may be a defense to a charge of discrimination” if a

challenged qualification standard or criterion “has been

shown to be job-related and consistent with business

necessity, and such performance cannot be accom-

plished by reasonable accommodation.” 42 U.S.C.

12113(a). The ADA specifies that the “term ‘qualifica-

tion 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,” 42 U.S.C.

12113(b) (emphasis added), and defines “direct threat”

in parallel terms, see 42 U.S.C. 12111(3).

The EEOC has interpreted those provisions to per-

mit an employer to impose a qualification standard that

screens out not only individuals who pose a direct

threat to the health or safety of other individuals in the

workplace but also individuals who pose such a threat

to their own health or safety. Specifically, the EEOC

has issued a regulation that provides that “(t]he term

‘qualification standard’ may include a requirement that

an individual shall not pose a direct threat to the health

or safety of the individual or others in the workplace.”

29 C.F.R. 1630.15(b)(2) (emphasis added). Another

EEOC regulation defines “direct threat” as a “signifi-

cant 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) (emphasis added).

The EEOC promulgated those regulations through

notice-and-comment rulemaking, see 56 Fed. Reg.

35,726 (1991), pursuant to an express delegation of

authority to promulgate regulations to “carry out” the

10

provisions of Title I of the ADA. 42 U.S.C. 12116. The

EEOC’s regulatory interpretation is therefore entitled

to deference in accordance with Chevron U.S.A. Inc. v.

Natural Resources Defense Council, Inc., 467 U.S. 837,

842-845 (1984).

“(Aldministrative implementation of a particular

statutory provision qualifies for Chevron deference

when it appears that Congress delegated authority to

the agency generally to make rules carrying the force of

law, and that the agency interpretation claiming defer-

ence was promulgated in the exercise of that author-

ity.” United States v. Mead Corp., 121 S. Ct. 2164, 2171

(2001). It is “fair to assume” that “Congress contem-

plates administrative action with the effect of law when

it provides for a relatively formal administrative proce-

dure,” such as the notice-and-comment rulemaking that

the EEOC undertook in this case. Jd. at 2172-2173.

Compare Sutton v. United Air Lines, Inc., 527 U.S. 471,

479 (1999) (reserving the question whether the EEOC’s

regulation interpreting the term “disability” is entitled

to Chevron deference because that term is defined in

statutory provisions over which the EEOC has not

been delegated rulemaking authority).

Because the EEOC’s regulations interpret provisions

over which the ADA expressly grants the EEOC

rulemaking authority, the court of appeals was “obliged

to accept the [EEOC]’s position if Congress has not

previously spoken to the point at issue and the

[EEOC}’s interpretation is reasonable.” Mead, 121 S.

Ct. at 2172 (citing Chevron, 467 U.S. at 842-845). The

court, however, concluded that the EEOC’s position is

contrary to, the clear intent of Congress. That con-

clusion was incorrect.

The ADA sets forth a general defense for “quali-

fication standards” or “other selection criteria” that are

11

“job-related and consistent with business necessity.”

42 U.S.C. i12113(a); see also 42 U.S.C. 12112(b)(6) (ex-

cluding such standards and criteria from the definition

of discrimination). The statute specifies that such

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.” 42

U.S.C. 12113(b). It does not state that this requirement

is the only permissible qualification standard concern-

ing workplace threats to health or safety. To the

contrary, it provides a general defense for job-related

qualification standards and selection criteria that are

consistent with business necessity, and it employs

words of inclusion (“may include”) when specifying a

threat to others as an example of a permissible quali-

fication standard. Nothing in the ADA forecloses a

qualification standard or selection criterion that

requires that an individual not pose a threat to his own

health or safety. Under those circumstances, Congress

has not “directly spoken to the precise question”

whether an employer may require as a qualification

standard that a prospective employee be able to

perform the job he seeks without posing a threat to his

own health or safety. Chevron, 467 U.S. at 842.

B. The Court Of Appeals’ Reliance On The Expressio

Unius Canon Was Erroneous

The court of appeals reached a contrary conclusion

because of its mistaken reliance on the canon of statu-

tory construction expressio unius est exclusio alterius.

The court reasoned that the statutory specification of a

“direct threat” defense for the risk of harm to others

implicitly precludes a direct threat defense for the risk

of harm to self. See Pet. App. 6a-7a.

12

That reasoning is flawed. The court of appeals’ reli-

ance on the expressio unius principle was inappropriate

because the relevant statutory language is expressly

inclusive. As noted above, the threat-to-others defense

is included in the section of the ADA that sets forth a

more general defense for qualifications standards that

are “job-related and consistent with business neces-

sity.” 42 U.S.C. 12113(a). The statutory language

specifies one example of that defense—“ ‘qualification

standards’ may include a requirement that an indivi-

dual shall not pose a direct threat to the health or

safety of other individuals in the workplace.” 42 U.S.C.

12113(b) (emphasis added). The use of the term “in-

clude” indicates that what follows is illustrative rather

than exclusive. See Federal Land Bank v. Bismarck

Lumber Co., 314 U.S. 95, 100 (1941) (explaining that

“the term ‘including’ is not one of all-embracing defini-

tion, but connotes simply an illustrative application of

the general principle”); 2A Norman J. Singer, Statutes

and Statutory Construction § 47.07, at 231 (6th ed.

2000); see, e.g., Pfizer Inc. v. Government of India, 434

U.S. 308, 312 n.9 (1978); United States v. New York Tel.

Co., 434 U.S. 159, 169 (1977).

This Court has frequently cautioned against that kind

of uncritical reliance on the expressio unius principle.

See Pauley v. BethEnergy Mines, Inc., 501 U.S. 680,

703 (1991); Burns v. United States, 501 U.S. 129, 136

2 The ADA’s definition of “direct threat” to mean “a significant

risk to the health or safety of others,” 42 U.S.C. 12111(3), does not

preclude the EEOC from using that term to describe another,

similar example of the business necessity defense—a requirement

that an employee’s performance of the job not pose a significant

risk to the health or safety of the employee himself. The statutory

definition of “direct threat” simply defines that term as it is used in

the statute.

13

(1991); Ford v. United States, 273 U.S. 593, 612 (1927).

Moreover, courts have noted that the canon is “an

especially feeble helper in an administrative setting,

where Congress is presumed to have left to reasonable

agency discretion questions that it has not directly

resolved.” Cheney R.R. v. ICC, 902 F.2d 66, 69 (D.C.

Cir.), cert. denied, 498 U.S. 985 (1990). Because it relies

on an inference rather than a direct statement, the

canon “can rarely if ever be the ‘direct[]’ congressional

answer required by Chevron.” Ibid. See also Martini

v. Federal Nat’l Mortgage Ass’n, 178 F.3d 1336, 1343

(D.C. Cir. 1999) (expressio unius maxim “is simply too

thin a reed to support the conclusion that Congress has

clearly resolved [the] issue”), cert. dismissed, 528 U.S.

1147 (2000).

The legislative history of the ADA likewise does not

indicate an intent to limit the business necessity

defense to health and safety threats to others in the

workplace. The Ninth Circuit concluded otherwise

because, when the term “direct threat” was used in the

“various committee reports” and “floor debate,” there

was no explicit reference to “threats to the disabled

person himself.” Pet. App. 7a-8a. That reasoning

applies to the legislative history the same erroneous

expressio unius analysis that the court of appeals

applied to the statutory language. As discussed above,

that principle is not applicable here. Indeed, it is

particularly inappropriate to apply the expressio unius

canon to the legislative history, since “the language of a

statute * * * is not to be regarded as modified by

examples set forth in the legislative history.” Pension

Benefit Guar. Corp. v. LTV Corp., 496 U.S. 633, 649

(1990). Further, although the legislative history rele-

vant to the threat-to-self defense is mixed, see 136

Cong. Rec. 17,377 (1990) (Sen. Kennedy), there is, as

14

the court of appeals acknowledged (Pet. App. 9a n.6),

legislative history that supports its recognition, H.R.

Rep. No. 485, 101st Cong., 2d Sess. Pt. 2, at 73-74

(1990).

Cc. The EEOC’s Threat-To-Self Regulations Are A

Reasonable Interpretation Of The ADA

The EEOC’s regulations reflect a reasonable inter-

pretation of the ADA entitled to Chevron deference.

Although the “direct threat” provision of the ADA does

not itself provide a defense when the employee’s job

performance poses a threat to the employee himself,

the EEOC reasonably concluded that the general

business necessity defense is broad enough to include a

threat-to-self defense. See 29 C.F.R. Pt. 1630 App.

§ 1630.15(b) (noting that employers with qualification

standards based upon safety must satisfy the direct

threat standard “in order to show that the requirement

is job-related and consistent with business necessity”).

As noted above, the ADA provides a general defense

for qualification standards or other selection criteria

that are job-related and consistent with business neces-

sity. The “direct threat” provision is illustrative of that

general defense and does not exclude other potential

applications. A qualification standard that screens out

disabled individuals who pose a threat to their own

health or safety fits comfortably within the general

defense. Like the congressionally-specified defense for

standards that screen out those who pose a threat to

the health or safety of others, it is job-related and

consistent with business necessity.

When there is a high probability that an employee

will suffer serious injury or death in the near future

because of his performance of the job, there is a

significant risk that the employee will not be able to

15

perform the essential functions of the job on an on-

going basis. If the employee becomes unable to

perform the job, the employer will likely incur con-

siderable costs due to interruption of business opera-

tions and the need to find a replacement. Furthermore,

serious injuries and deaths pose the potential for unique

disruptions in the workplace and unique costs to

employers.

In addition, as the EEOC noted when it promulgated

its regulations, 56 Fed. Reg. at 35,745, including harm

to the disabled individual within the general business

necessity defense is consistent with judicial precedent

under the Rehabilitation Act of 1973, 29 U.S.C. 791-794

(1994 & Supp. V 1999), as well as the EEOC’s regula-

tions interpreting that provision. See Pet. 18-20 (col-

lecting cases and also citing EEOC regulations); Pet.

App. 16a n.10 (citing Mantolete v. Bolger, 767 F.2d

1416, 1422-1424, amended by 38 Fair Empl. Prac. Cas.

(BNA) 1517 (9th Cir. 1985)). Because the ADA is

modeled on the Rehabilitation Act, it was reasonable

for the EEOC to incorporate prior practice under the

Rehabilitation Act into its ADA regulations. See

Bragdon v. Abbott, 524 U.S. 624, 631-632, 645 (1998); see

also 42 U.S.C. 12201 (incorporating Rehabilitation Act

standards into the ADA “[e)xcept as otherwise

provided”).

Finally, at the same time that the EEOC’s approach

accommodates legitimate business concerns, it also

protects disabled employees from “over-protective

rules and policies” (42 U.S.C. 12101(a)(5)) based on

“stereotypic assumptions” (42 U.S.C. 12101(a)(7)).

Under the threat-to-self regulations adopted by the

EEOC, employers do not (as the court of appeals

feared) have license to “deny a person an employment

opportunity based on paternalistic concerns regarding

16

the person’s health.” Pet. App. 8a (quoting 136 Cong.

Rec, at 17,377 (Sen. Kennedy)). The EEOC’s regula-

tions apply to the threat-to-self defense the demanding

direct threat standard that applies to the threat-to-

others defense. That standard protects against abuse

of the defense by requiring the employer to prove

“significant risk of substantial harm to the health or

safety of the individual or others,” based “on an

individualized assessment of the individual’s present

ability to safely perform the essential functions of the

job.” 29 C.F.R. 1630.2(r). In addition, by analyzing

employer concerns about threat to self as a defense

(rather than part of the employee’s prima facie demon-

stration that he or she is “qualified” under 42 U.S.C.

12112(a)), the regulations appropriately place the

burden of proof on employers. The EEOC’s regulations

are thus eminently reasonable, and the court of appeals

erred in invalidating them.

Il. THE COURT OF APPEALS’ DECISION WARRANTS

THIS COURT’S REVIEW

This Court should grant the petition for a writ of cer-

tiorari and reverse the erroneous decision of the Ninth

Circuit. That decision has.created a conflict among the

courts of appeals. As the Ninth Circuit acknowledged,

Pet. App. 6a, its decision cannot be reconciled with the

decision of the Eleventh Circuit in Moses v. American

Nonwovens, Inc., 97 F.3d’ 446 (1996) (per curiam), cert.

denied, 519 U.S. 1118 (1997). In Moses, the court of

appeals held that an employer did not violate the ADA

by terminating an employee with epilepsy because the

risks to “his own health or safety” satisfied the “direct

threat” defense. Jd. at 447. Citing both the general

business necessity and direct threat subsections of the

ADA, the court stated: “An employer may fire a dis-

17

abled employee if the disability renders the employee a

‘direct threat’ to his own health or safety.” Ibid.

Although the Eleventh Circuit did not explicitly

address the validity of the EEOC’s regulations, the

court cited one of those regulations with approval. See

ibid. (citing 29 C.F.R. 1630.2(r)).’

This Court’s review is also warranted because the

Ninth Circuit’s decision invalidates the EEOC’s regula-

tions. As a result, employers who operate nationwide

must modify their employment practices in the Ninth

Circuit even though they follow EEOC regulations in

other parts of the country. For the EEOC, the Ninth

Circuit’s ruling means that different field offices will

process discrimination complaints under different legal

standards. Offices outside the Ninth Circuit will apply

the threat-to-self regulations; offices that serve areas

entirely within the Ninth Circuit will not, and offices

that serve areas both inside and outside the Ninth

Circuit will need to apply different standards in differ-

ent cases. The ADA’s anti-discrimination provisions

should not apply in this haphazard fashion; clear and

consistent standards should govern nationwide.

8 The Ninth Circuit’s holding in this case is also inconsistent

with statements in decisions of other courts of appeals that assume

the existence of a threat-to-self defense. See Pet. App. 6a (citing

cases); see also Borgialli v. Thunder Basin Coal Co., 235 F.3d

1284, 1291 (10th Cir. 2000) (citing with approval EEOC’s regula-

tions). Moreover, although the Ninth Circuit correctly held that

respondent is a “qualified individual” under 42 U.S.C. 12112(a),

that aspect of the court’s decision is in tension with the Seventh

Circuit’s decision in Koshinski v. Decatur Foundry, Inc., 177 F.3d

599 (1999). In that case, the Seventh Circuit held that the plaintiff

was not qualified because “there was no way to do the job [that he

had previously held] without subjecting himself to the very things

his doctors recommended he stay away from.” /d. at 603.

18

Finally, the issue of threat to self arises with suffi-

cient frequency that it merits this Court’s attention. In

addition to the cases involving private employers noted

in the petition, the federal government has encountered

numerous cases involving threats to the health or

safety of applicants or employees. In McClaren v.

Dalton, Appeal No. 01960820, 1997 WL 774840, at *3

(EEOC Dec. 5, 1997), for instance, the EEOC ruled that

the Department of the Navy lawfully precluded an em-

ployee with multiple sclerosis from working aboard

ships because the work would have posed a direct

threat of substantial harm to the employee’s health and

safety. In another case, the EEOC sustained the Postal

Service’s refusal to allow an employee to continue his

previous work as a window clerk because that con-

tinued employment would have posed a threat to his

health and possibly required amputation of his foot.

Haug v. Runyon, Appeal No. 01951337, 1998 WL 25247,

at *8 (EEOC Jan. 9, 1998). See also Burkett v. United

States Postal Serv., 175 F.R.D. 220 (N.D. W.Va. 1997);

Merrell v. Pirie, Appeal No. 01971565, 2001 WL 237043,

at *4 (EEOC Mar. 2, 2001); Patterson v. Summers,

Appeal No. 01964964, 2000 WL 366113 (EEOC Apr. 3,

2000); Stallings v. Summers, Appeal No. 01964963, 2000

WL 366114 (EEOC Apr. 3, 2000); Cobb v. Summers,

Appeal No. 01965074, 2000 WL 366115 (EEOC Apr. 3,

2000). |

19

CONCLUSION

For the foregoing reasons, the petition for a writ of

certiorari should be granted.

Respectfully submitted.

THEODORE B. OLSON

Solicitor General

ROBERT D. MCCALLUM, JR.

NICHOLAS M. INZEO Assistant Attorney General

—_—— uty Conaves PAUL D. CLEMENT

PHILIP B. SKLOVER em eagle

. MATTHEW D. ROBERTS

Associate General Counsel Assistant to the Solicitor

CAROLYN L. WHEELER General

Acststant Coneves Counsss MARLEIGH D. DOVER

ROBERT J. GREGORY MATTHEW M. COLLETTE

Senior Attorney Attorneys

Equal Employment

Opportunity Commission

SEPTEMBER 2001