# Amicus Curiae Brief — Chevron USA Inc. v. Echazabal

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Amicus Curiae Brief
- **Published:** January 1, 2002
- **Citation:** 536 U.S. 73

## Text

| 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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385014_0454%3A09. Public record. Not legal advice.