Amicus Curiae Brief — Chevron USA Inc. v. Echazabal

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Court, U.S.

FILED

| saat am

No. 00-1406

OFFICE OF THE CLERK

In the

Supreme Court of the United States

CHEVRON U.S.A., INC.,

Petitioner,

Vv.

MARIO ECHAZABAL,

Respondent.

- +

On Petition for Writ of Certiorari to the United States

Court of Appeals for the Ninth Circuit

BRIEF AMICUS CURIAE OF PACIFIC LEGAL

FOUNDATION AND CALIFORNIA

MANUFACTURERS AND TECHNOLOGY

ASSOCIATION IN SUPPORT OF THE

PETITION FOR WRIT OF CERTIORARI

ANNE M. HAYES

Counsel of Record

M. REED HOPPER

Pacific Legal Foundation

10360 Old Placerville Road,

Suite 100

Sacramento, California 95827

Telephone: (916) 362-2833

Facsimile: (916) 362-2932

Counsel for Amici Curiae

Pacific Legal Foundation and

California Manufacturers and

Technology Association |

: QUESTION PRESENTED

Whether a person who is unable to carry out the essential

functions of a job without incurring significant risks to the

person’s own health or life is a “qualified individual” who

satisfies “qualification standards” for that job within the

meaning of the Americans with Disabilities Act.

TABLE OF CONTENTS

QUESTION PRESENTED .......... 0.0 eee eeee ee eeeeees

TABLE OF AUTHORITIES ..........ccscccccvccccvcees iii

INTEREST OF AMICICURIAE ............5500 eee eens

STATEMENT OF THE CASE ......cccccccccccccccccces

SUMMARY OF ARGUMENT ..............-500 eee cues

ADLIUIMIT ow oc cccccccvvcceoscessvesessuseeeeeneuneen

1. THIS COURT SHOULD GRANT THE PETITION

TO PROVIDE GUIDANCE TO EMPLOYERS ON

HOW THE AMERICANS WITH DISABILITIES

ACT DISTINGUISHES BETWEEN LEGITIMATE

SAFETY CONCERNS AND IMPERMISSIBLE

DIBCRIAGIMATION .nccccccccccvesevsccsceccccer

ll. THIS COURT SHOULD GRANT THE PETITION

TO ESTABLISH REASONABLE LIMITS ON THE

OBLIGATIONS OF EMPLOYERS SO THAT THE

ACT SERVES ITS INTENDED GOAL OF

ELIMINATING INVIDIOUS AND IRRATIONAL

DISCRIMINATION AGAINST THE DISABLED ....

CORCTATIIIIN o ccccccccccscovcesesnedeeceuasenueeens

TABLE OF AUTHORITIES

Page

Cases

Albertson's, Inc. v. Kirkingburg,

DD sceveneccceceesedecsetaceds 10

Bridges v. City of Bossier,

Pn oc nenscenccncess seus 12

Cleveland v. Policy Management Systems

Corporation, 526 U.S. 795 (1999)... 6. cen 6

Dothard v. Rawlinson, 433 U.S. 321 (1977) ........... 11

Echazabal v. Chevron USA, Inc.,

226 F.3d 1063 (9th Cir. 2000)......... 2-3, 6, 8, 11, 15

Equal Employment Opportunity

Commission v. Exxon Corporation,

203 F.3d 871 (Sth Cir. 2000)... ............ 10-11, 13

Equal Employment Opportunity

Commission v. United Parcel Service, Inc.,

No. C 97-00961 WHA 2000 U.S. Dist.

LEXIS 18973 (N.D. Cal. Dec. 12, 2000) ........... 12

Fitzpatrick v. City of Atlanta,

EE, PEED cc cecccceccocececess 11

International Union v. Johnson Controls, Inc.,

i poke eee eechecceccess 11,15

Jones v. United States, 529 U.S. 848 (2000) ............ l

Murphy v. United Parcel Service,

i en eee eceeeeeeesetes 6

Serrano v. County of Arlington,

986 F. Supp. 992 (E.D. Va. 1997)... 2... 6 eee, 16

TABLE OF AUTHORITIES—C ontinued

Solid Waste Agency of Northern Cook County v.

United States Army Corps of Engineers,

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Sutton v. United Air Lines, Inc.,

Ee Was GUO CROCE cccccccccccccccccceces

Toyota Motor Manufacturing v. Williams,

cert. granted, 69 U.S.L.W. 3670 (2001) .......

U.S. Airways, Inc. v. Barnett, cert. granted,

69 U.S.L.W. 3670 (2001) .. 2... eee eee

SPs EP EEEEED Schon ceniectecesdcenss

42 U.S.C. § 12101(aX(7) (2001) .... 2... eee eee

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De PT ee

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SS SED. vo cencccencdecéscadeuen<

DGS GEEEED kuccscoctsccdgcnskaadasacs

Cal. Lab. Code § 6402 (2001) .................

Regulations

29 C.F.R. § 1630.2(q) (2001)... oe eee ee eee

Dp FES GEEED cc ccbeccseccesccsnceess

TABLE OF AUTHORITIES—Continued

Page

Court Rules

Suppose Cast TE FID oo cc ccvcccccescececescecess I

Rabe FED occ cccccccsesucessvesdedteueuveumeneed l

Miscellaneous

H.R. Rep. No. 101-485(II) (1990),

reprinted at 1990 U.S.C.C.A.N. 303 ........... 15-18

H.R. Rep. No. 101-485(II1) (1990),

reprinted at 1990 U.S.C.C.A.N. 445... 2.62.55: 17-18

Statement by President George Bush upon Signing

S. 933, 26 Weekly Comp. Pres. Doc. 1165 (July 30,

1990), reprinted at 1990 U.S.C.C.A.N. 601... 2.2.2... 5

INTEREST OF AMICI CURIAE

Pursuant to Supreme Court Rule 37.3, Pacific Legal

Foundation (PLF) and California Manufacturers and

Technology Association respectfully submit this brief amicus

curiae in support of the Petition for Writ of Certiorari.' Written

consent for amicus participation in this case was granted by

counsel of record for all parties.

Amicus PLF is the largest and most experienced nonprofit

public interest law foundation of its kind in America. Founded

in 1973, PLF provides a voice in the courts for mainstream

Americans who believe in limited government, private property

rights, individual freedom, and free enterprise. PLF litigates

nationwide in state and federal courts with the support of

thousands of citizens from coast to coast. PLF has participated

in numerous cases before this Court concerning statutory

interpretation of federal laws in cases raising significant public

interest concerns, such as Solid Waste Agency of Northern Cook

County v. United States Army Corps of Engineers, 53\ U.S. 159

(2001), and Jones v. United States, 529 U.S. 848 (2000).

PLF seeks to augment the arguments of Petitioner by

further illustrating how public policies will be affected by the

outcome of this litigation. PLF believes its public policy

perspective and litigation experience will provide a unique

viewpoint on the issues presented in this case and that this

additional viewpoint will aid the Court in evaluating the merits

of this petition.

' Pursuant to Supreme Court Rule 37.6, Amici Curiae Pacific Legal

Foundation and California Manufacturers and Technology

Association affirm that no counsel for any party in this case authored

this brief in whole or in part; and, furthermore, that no person or

entity has made a monetary contribution specifically for the

preparation or submission of this brief.

Amicus California Manufacturers and Technology

Association (CMTA) is a mutual benefit, nonprofit, nonpartisan

corporation established in 1918 to effectuate communication

between its members and state policymakers and the courts

about issues that affect the interests of manufacturers.

The membership of CMTA includes more than 700 companies

that employ approximately 70% of the manufacturing

workforce in California.

CMTA believes the decision of the court below adversely

affects the interests of its members by discounting their

legitimate—and law enforced—policies regarding worker

safety. CMTA believes it is critical for this Court to clarify the

standards under which employers may consider safety-based job

qualifications in the implementation of the ADA.

STATEMENT OF THE CASE

Respondent Mario Echazabal was an employee of a

company called Irwin Industries, Inc., which did subcontract

work for Chevron at its coker plant in El Segundo, California.

Echazabal v. Chevron USA, Inc., 226 F.3d 1063, 1065 (9th Cir.

2000). In 1992, Echazabal applied for a job as a plant helper

directly with Chevron. Chevron tendered an employment offer

to Echazabal contingent upon his passing the company’s

physical exam. /d. The physical exam revealed that Echazabal

had a liver abnormality. /d Because the plant helper position

in the coker plant would expose Echazabal to liver-toxic

chemicals that could further damage his liver or, in the event of

an accident, fatally injure him, Chevron withdrew its offer. /d.

Nonetheless, Echazabal continued to work for the subcontractor

at the Chevron plant. /d Subsequently, doctors diagnosed

Echazabal as having chronic active hepatitis C. /d.

In 1995, Echazabal again applied for a job directly with

Chevron. /d. Again, Chevron tendered an offer contingent

upon the results of a medical exam. /d. And again, the exam

revealed Echazabal’s liver problems. /d Accordingly,

Chevron withdrew its offer of employment and, further,

requested Echazabal’s employer, Irwin Industries, to remove

Echazabal from the coker plant and find him a position where

he would not be exposed to liver-toxic chemicals. /d.

Consequently, Echazabal lost his position at the refinery. /d.

As a result of these actions, Echazabal filed a complaint with

the Equal Employment Opportunity Commission (EEOC), and

this suit followed. /d.

Echazabal’s suit against Chevron and Irwin Industries

raises various issues. Relevant to the petition, however, is only

one issue: Echazabal’s claim under the Americans with

Disabilities Act (ADA) against Chevron. Chevron defended its

actions by asserting that Echazabal was not a “qualified

individual with a disability” within the terms of the ADA, and,

alternatively, that it was justified because the job would pose a

“direct threat” to Echazabal’s health. /d. at 1066. The district

court granted summary judgment for Chevron. /d. at 1065.

On appeal, the Ninth Circuit, in a 2-1 decision, reversed.

Id. at 1072. The Ninth Circuit first held that, under the ADA,

it was not a defense to liability that a job would pose a threat to

the health of the disabled individual; rather, the only rationale

on which an employer could justify itself under the “direct

threat” defense was if the disabled individual would create a

threat to the health or safety of other individuals. /d. at 1069.

Second, it held that the physical exam requirements of the plant

helper job were not legitimate job “qualification standards”

within the meaning of the ADA, because the ability to

withstand the effects of liver-toxic chemicals was not an

“essential function” of the plant helper position. /d. at 1070-71.

Chevron has filed a Petition for Writ of Certiorari to

resolve a conflict in the circuits as to whether health conditions

can render an individual not a “qualified individual with a

disability” for a job (such that the person may not state an ADA

claim) and whether threats to the disabled individual, as

opposed to others only, constitute a valid basis for employment

decisions under the ADA.

SUMMARY OF ARGUMENT

The Americans with Disabilities Act is well-intentioned,

but it is one of the most unwieldy laws ever passed by

Congress. Title 1 of the ADA, which governs discrimination in

the employment context, was intended to eliminate barriers to

employment for disabled individuals where those disabilities

reasonably could be accommodated in order to integrate

disabled individuals into mainstream economic life. The Act’s

promises, however, have not been easy for employers to fill

despite their best intentions and efforts. The provisions of the

Act are open to so many varying interpretations that employers

have been confronted with a minefield of pitfalls and traps

in their attempts to navigate the Act’s requirements. The

pitfall in this case lies in determining when an employer may

properly consider safety-related concerns in establishing job

qualifications.

In the decision below, the Ninth Circuit limited the

employer's ability to consider safety-related qualifications to

situations where employing an individual with a disability will

present a direct threat not to the disabled individual himself, but

to third parties or, alternatively, where the safety standard could

be said to constitute an “essential function” of the job in

question. In contrast, other courts of appeals have allowed

employers to apply safety-related standards where the standard

is merely “job-related.” In this case, Petitioner’s liability rests

squarely upon the difference between these standards. This

Court should grant the Petition for Writ of Certiorari to resolve

this conflict and to define when safety-related qualifications

may properly be considered by employers in their employment

decisions.

This case also presents a narrower question of whether

employers may consider the safety of disabled individuals when

making employment decisions. Under the Ninth Circuit’s

holding, employers may not be solicitous of the welfare of

disabled individuals; rather, employers must simply allow

disabled individuals the option of risking their own health and

safety, notwithstanding common sense, ethics, or the many

government policy edicts that encourage, if not outright

demand, that employers take steps to minimize employee

casualties where those risks are known and quantifiable. The

Ninth Circuit’s holding does nothing to further the laudable

goals of the ADA, and this Court should grant the Petition for

Writ of Certiorari to establish reasonable boundaries to the

scope and reach of the ADA’s liability provisions.

ARGUMENT

THIS COURT SHOULD GRANT THE

PETITION TO PROVIDE GUIDANCE

TO EMPLOYERS ON HOW THE AMERICANS

WITH DISABILITIES ACT DISTINGUISHES

BETWEEN LEGITIMATE SAFETY CONCERNS

AND IMPERMISSIBLE DISCRIMINATION

Fears that the ADA is too vague or too costly

and will lead to an explosion of litigation are

misplaced. ... [Wherever possible, existing

language and standards from the Rehabilitation Act

were incorporated into the ADA. ... Employers

can turn to these interpretations for guidance on how

to meet their obligations under the ADA.

Statement by President George Bush upon Signing S. 933, 26

Weekly Comp. Pres. Doc. 1165 (July 30, 1990), reprinted at

1990 U.S.C.C.A.N. 601. Despite the assurances of President

Bush, it is clear that the terms of the ADA have not been as

readily comprehensible to employers—or to courts, for that

matter—as he surmised. Indeed, this Court has already felt

compelled by disagreements in the federal circuits to resolve

important questions, such as whether disabilities must be

determined with or without reference to corrective measures,

see Sutton v. United Air Lines, Inc., 527 U.S. 471 (1999),

Murphy v. United Parcel Service, 527 U.S. 516 (1999), and

whether an application for disability benefits precludes an ADA

claim. Cleveland v. Policy Management Systems Corporation,

526 U.S. 795 (1999). And, on April 16, 2001, this Court

granted petitions for writ of certiorari in two additional cases

arising under the ADA to resolve additional conflicts in the

circuits. Toyota Motor Manufacturing v. Williams, cert.

granted, 69 U.S.L.W. 3670 (2001), and U.S. Airways, Inc. v.

Barnett, cert. granted, 69 U.S.L.W. 3670 (2001). This case

presents another question upon which the federal circuit courts

of appeals have arrived at conflicting decisions, and a case

where the rule announced by the court below conflicts directly

with regulations adopted by the Equal Employment Opportunity

Commission, the federal agency charged with enforcing the

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

(1999). Accordingly, review by this Court is appropriate to

resolve when employers may appropriately consider safety

qualifications in filling jobs with disabled individuals under

Title | of the ADA.

In the decision below, the Ninth Circuit framed the issue

narrowly: whether the “direct threat” defense to liability under

the ADA is available to employers where a job presents a direct

threat to the health or safety of the disabled individual himself

but not to others. Echazabal, 226 F.3d at 1064. As

demonstrated by the question presented in the petition,

however, this case has broader implications on how employers

must construe their obligations under the Act when confronted

with the vast array of conditions which have been held by

courts to constitute “disabilities” protected by the Act. Indeed,

the court below, by framing the “direct threat” question as the

only relevant question in this case, rejected less-restrictive

interpretations of the Act adopted by other courts of appeals and

concomitantly has opened the door to broader entitlements

under the ADA for a large variety of individuals with varying

medical conditions. As a result, the decision below leaves

employers guessing as to when they may properly take medical

conditions into account when filling jobs that carry with them

known health or safety risks.

While the ADA is fairly straightforward in its overall

scheme, the devil is, of course, in the details of how its broad

and amorphous terms are supposed to be construed when

confronted with the realities of employment decisionmaking.

Put simply, Title | of the ADA prohibits employers from

discriminating against a “qualified individual with a disability”

if the job in question may be performed by the disabled

individual with or without reasonable accommodation.

42 US.C. § 12112(a) (2001). While this proscription is

eminently understandable in the context of, for example, a blind

telemarketer, it is not so easy to comprehend or apply in other

contexts. First, the term “disability” is given a remarkably

broad and vague definition under the Act:

(2) The term “disability” means, with respect

to an individual—

(A) a physical or mental impairment that

substantially limits one or more of the major life

activities of such individual;

(B) a record of such an impairment; or

impairment.

42 U.S.C. § 12102(2) (2001). As this Court pointed out in

Sutton, there is no precise meaning of what physical or mental

conditions may constitute a “disability.” Sutton, 527 U.S. at

479. Further, in order to be protected by Title | of the ADA, an

individual must not only be “disabled,” but “qualified.” A

“qualified individual with a disability”

means an individual with a disability who, with or

without reasonable accommodation, can perform the

essential functions of the employment position that

such individual holds or desires. For the purposes of

this title, consideration shall be given to the

employer’s judgment as to what functions of a job

are essential ... .

42 U.S.C. § 12111(8) (2001).

In this case, Respondent has chronic active hepatitis C. It

is generally acknowledged that ‘this is a serious illness;

however, as the Ninth Circuit noted, Mr. Echazabal has been

performing the job denied by Chevron for a number of years

under the aegis of a subcontractor. Echazabal, 226 F.3d

at 1072. Nonetheless, Mr. Echazabal’s illness was the

disqualifying factor in Chevron’s employment decision.

Chevron disqualified Mr. Echazabal from the plant helper

position by virtue of his acute sensitivity to the liver-toxic

chemicals to which he would be exposed in that job.

Chevron contended that its hiring decision was defensible

under the ADA. It defended its decision by invoking Section

12113, Subsection (a), which states:

It may be a defense to a charge of

discrimination under this Act that an alleged

application of qualification standards, 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, as required under this title.

42 U.S.C. § 12113(a) (2001). Further, EEOC regulations

explain:

Qualification standards the personal and

professional attributes including the skill,

experience, education, physical, medical, safety and

other requirements established by a covered entity

as requirements which an individual must meet in

order to be eligible for the position held or desired.

29 C.F.R. § 1630.2(q) (2001) (emphasis added). Relying upon

requirement, under which the company required that an

employee meet specific health criteria, was justifiable. Chevron

contended that the ability to withstand acute health risks was

job-related and, therefore, Mr. Echazabal was not qualified for

the plant helper position. Under Chevron’s reading of the Act

and EEOC regulations, employers have some leeway as to what

they consider the requirements of a job in question. Employers,

they argued, may thus deny employment to a disabled

individual if that individual does not meet job-related safety

requirements.

But the Ninth Circuit rejected the notion that health

conditions related to worker safety could disqualify a disabled

individual. Rejecting Chevron’s reading of Section 12113(a),

the court instead focused on Subsection (b), which provides:

The term “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) (2001). Notwithstanding the general

language of Section 121 13(a), the court relied upon this single

statutory provision as the sole means by which Chevron could

defend its decision. The court construed the Act such that

employers may only disqualify disabled individuals for safety-

related concerns when an individual poses a “direct threat” to

third parties. Furthermore, the court construed this provision

narrowly and hypertechnically, holding that, despite the

precatory phrase “may include,” the Act precluded employers

from using the “direct threat” defense in situations where a job

condition might pose a “direct threat” to the disabled individual

himself.’ See 29 C.F.R. § 1630.2(r) (2001). This holding, and

the way in which the Ninth Circuit arrived at it, raises several

issues that conflict with the decisions of other federal circuits

and which call for further clarification from this Court.

As this Court noted in Albertson's, Inc. v. Kirkingburg,

527 U.S. 555, 569, and 569 n.15 (1999), it is not clear whether

the EEOC’s (and the Ninth Circuit’s) contention that the

“direct threat” provision of the Act as the sole means of defense

to liability for safety-related concerns is a correct reading of the

Act. That is, Section 12113(a) generally speaks of qualification

standards that are merely “job-related,” while Subsection (b)

additionally provides specifically that employers may disqualify

disabled individuals who present “direct threats.” As the EEOC

interprets these provisions, (a) and (b) are conflated so that

safety concerns may only apply under the “direct threat”

defense. Kirkingburg, 527 U.S. at 569. While the Ninth

Circuit accepted this interpretation, other circuits have rejected

it.

For example, the Fifth Circuit, in Equal Employment

Opportunity Commission v. Exxon Corporation, 203 F.3d

871 (Sth Cir. 2000), held that “safety requirements are not

exclusively cabined into the direct threat test.” /d at 873. At

issue in Exxon was the validity of a policy in which Exxon

* Ironically, the Ninth Circuit accepted EEOC’s interpretation that

Subsections (a) and (b) of Section 12113 are conflated so that safety-

based qualifications are only valid if they fall under the “direct

threat” defense, while at the same time rejecting EEOC’s

interpretation that the “direct threat” defense includes situations

where the threat is to the disabled individuals themselves. As a

result, the Ninth Circuit has drawn the most narrow exception

possible for employers to justify safety-based standards under the

ADA.

permanently removed employees from “safety-sensitive, little-

supervised positions” if the individual had undergone treatment

for substance abuse. /d. at 872. The court held that Exxon was

not limited to the “direct threat” defense, but could defend its

policy as a valid “qualification standard” so long as the

requirement was job-related under Section 121 13(a). Jd. at 875.

Thus, in the Fifth Circuit, in addition to the “direct threat”

defense, employers can assert thai a safety-based standard

precludes liability when it is “job-related and consistent with

business necessity.” 42 U.S.C. § 12113(a)(2001). And, as that

court noted, the difference between the two is material. See

Exxon, 203 F.3d at 875. See also International Union v.

Johnson Controls, Inc., 499 U.S. 187, 193 (1991) (noting

distinction between “bona fide occupational qualification” and

“business necessity”). Indeed, safety-related standards have

generally been held to be a legitimate concern of employers.

For example, job-related safety standards have been held by this

Court and others to suffice for purposes of the “business

necessity” defense under Title VII. See Dothard v. Rawlinson,

433 U.S. 321, 331 n.14 (1977) (emphasis added) (“[A]

discriminatory employment practice must be shown to be

necessary to safe and efficient job performance to survive a

Title VII challenge.”); see also, Fitzpatrick v. City of Atlanta,

2 F.3d 1112, 1119 (11th Cir. 1993) (finding that “protecting

employees from workplace hazards is a goal that, as a matter of

law, has been found to qualify as an important business goal”

under the “business necessity” defense of Title VII).

In contrast, the Ninth Circuit allowed that, barring the

“direct threat” defense, Chevron could only apply its health

standards if a particular physical condition amounted to an

“essential [job] function” under Section 12111(8). Echazabal,

226 F.3d at 1071. Under this regime, Chevron’s medical

screening of applicants was fundamentally unsound under the

ADA. That is, the Ninth Circuit's analysis of job qualifications

in this case relates solely to Mr. Echazabal’s physiological

ability to carry out the particular mechanical functions of

plant helper. But the consequence of this holding is that

the evaluation of health risks are rarely, if ever, valid

under the ADA because health risks rarely constitute an

“essential function” of a job. Indeed, the EEOC has taken the

extreme and extremely peculiar position that safety-standards

are almost never “essential.” Thus, in Equal Employment

Opportunity Commission v. United Parcel Service, Inc.,

No. C 97-00961 WHA, 2000 U.S. Dist. LEXIS 18973 (N.D.

Cal. Dec. 12, 2000), the court observed:

The EEOC contends that ability to drive safely

is not an essential job function for a truck operator.

It says that driving is essential but driving safely is

not. This argument is a necessary by-product of the

EEOC’s strategic view of the business-necessity

defense . ...

Id. at *115.

in addition, as noted above, the Ninth Circuit rejected the

EEOC’s position that the “direct threat” defense is applicable

where placing a disabled individual in a particular job poses a

threat to the disabled individual himself. See 29 C.F.R.

§ 1630.2(r) (2001). Yet other courts appear to have accepted

such a defense at face value. See, e.g., Bridges v. City of

Bossier, 92 F.3d 329 (Sth Cir. 1996) (upholding safety standard

that barred applicant with hemophilia from position of

firefighter, where evidence demonstrated that firefighters

frequently suffered trauma injuries).

The problem created »y these conflicts is clear.

Employers are left in a quandary as to just what degree of

connection is required between a safety standard and job

performance in order to justify the application of a safety

standard under the ADA. In the Ninth Circuit, safety standards

are never legitimate unless am employer can show that the

standard would present a direct threat of inyury to third parties.

In contrast, in the Fifth Circuit, employers may either invoke

the direct threat defense or, alternatively, show that a safety

standard is job-related and consistent with business necessity,

which, as stated above, is an entirely different legal standard.

See also Exxon, 203 F.3d at 875. This Court should grant the

Petition for Writ of Certiorari to determine when employers

may properly consider safety standards in employment

decisions under Title I of the ADA.

THIS COURT SHOULD GRANT THE PETITION

TO ESTABLISH REASONABLE LIMITS ON THE

OBLIGATIONS OF EMPLOYERS SO THAT

THE ACT SERVES ITS INTENDED GOAL OF

ELIMINATING INVIDIOUS AND IRRATIONAL

DISCRIMINATION AGAINST THE DISABLED

The fundamental mandate of the Occupational Safety and

Health Act (OSHA) states:

(a) Each employer—

(1) shall furnish to each of his employees

employment and a place of employment which are

free from recognized hazards that are causing or are

likely to cause death or serious physical harm to his

29 U.S.C. § 654 (200/1). Further, in the State of California,

where the Chevron plant is located:

No employer shall require, or permit any

employee to go or be in any employment or place of

employment which is not safe and healthful.

Cal. Lab. Code § 6402 (2001). Consistent with these policies,

the EEOC adopted a regulation which allows employers to

where that individual poses

a significant risk of substantial harm fo 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) (2001) (emphasis added).

Yet, notwithstanding these provisions, the Ninth Circuit

held that the ADA requires employees to hire disabled

individuals even when the job in question will create acute

health hazards to the disabled individual. Thus, while OSHA

and state law demand that employers take affirmative steps to

watch out for the health and safety interests of its able-bodied

workers, and EEOC regulations similarly allow employers to

consider the safety and well-being of disabled workers, the

Ninth Circuit interpreted the ADA to require employers to

ignore these concerns. This is an unreasonable way to interpret

the ADA.

In drafting the ADA, Congress was focused on two

concerns: physical barriers to the full participation of the

disabled in mainstream economic life, and social barriers in the

form of prejudices and ignorance. Congress found:

[I}ndividuals with disabilities are a discrete and

insular minority who have been faced with

restrictions and limitations, subjected to a history of

purposeful unequal treatment, and relegated to a

position of political powerlessness in our society,

based on characteristics that are beyond the control

of such individuals and resulting from stereotypic

assumptions not truly indicative of the individual

ability of such individuals to participate in, and

contribute to, society... .

42 U.S.C. § 12101(aX7) (2001) (emphasis added). In short, the

ADA was intended to enforce a regime that would eradicate

irrational discrimination based on presumptions about the

bilities of disabled individual

But the Ninth Circuit’s holding requires more than

that employers eschew mistaken notions about the abilities

of disabled individuals, or eliminate barriers which can

be overcome by reasonable accommodation. Chevron’s

upon assumptions or myths, but was based on a factual

to which he aspired. In the interest of safeguarding its

employees’ health, Chevron employed a policy of barring those

with particular health conditions from undertaking positions in

according to the Ninth Circuit, employers may not consider

such factors under the ADA because the ADA bars such

“paternalistic” interests. See Echazabal, 226 F.3d at 1068-69.

There is evidence that Congress believed that

“employment decisions must not be based on paternalistic

views about what is best for a person with a disability.”

H.R. Rep. No. 101-485(II), at 74 (1990), reprinted at 1990

U.S.C.C.A.N. 303, 356. However, there is a distinction

between paternalism, in which decisions are based on

generalized presumptions of what might be best for a group of

individuals, and frank assessment of the well-being of a

particular individual in the execution of his or her job. Thus,

unlike Johnson Controls, which involved an employer policy

barring all women of child-bearing age from holding positions

involving exposure to lead out of fear that lead exposure might

harm any potential fetuses, this is not a case in which an

employer applies an across-the-board safety standard that bars

a discrete group of individuals, as a class, from a job because of

a potential but remote risk of injury. See Johnson Controls, 499

U.S. at 196. While the standard in Johnson Controls could

legitimately be labeled “paternalistic,” in that it was based on

general assumptions about what is best for all women, the same

cannot be said where the standard applied is based on an actual

and particularized evaluation of the health risks involved in a

job and the physical condition of a specific job candidate. In

this case, Chevron made an individualized assessment of

Echazabal’s actual health conditions and an actual assessment

of the specific conditions of the position he desired. This is not

“paternalism”; this is prudence and conscientiousness. As one

court explained the distinction:

Pernicious myths and prejudices about disabilities

often infect employment decisions where an

employer regards an individual as having an

impairment that renders him unsuited for a wide

class or broad range of jobs. The same cannot be said

of cases where, as here, an employer makes a

decision by focusing sharply on whether there is a

match between a particular job and an individual

with an actual impairment, given the current state of

medical knowledge about the impairment. Science,

not myths and prejudices, underlie such a decision;

it is a rational decision, not an irrational one. Put

another way, the ADA seeks only to remedy

perceived disabilities “that, like actual disabilities,

extend beyond [the] . . . isolated mismatch of [a

particular] employer and employee.”

Serrano v. County of Arlington, 986 F. Supp. 992, 997 (E.D.

Va. 1997) (citation omitted).

Congress did not intend the ADA to bar employers from

applying prudent and reasonable measures designed to enhance

and safeguard worker safety. For example, the House Report

specifically noted that the ADA was not intended to undermine

OSHA standards:

The OSHA lead standard, for example, requires

that employees exposed to lead be tested periodically

to determine the lead level in the employee’s blood.

transferred from the exposed workplace to another

worksite until the lead level falls below the

permissible level. At that point, the employee may

return to the original work station.

H.R. Rep. No. 101-485(II), at 74-75, reprinted at 1990

U.S.C.C.A.N. at 357. While OSHA may have no regulation

directly relevant to Echazabal’s situation, it is rather ironic that

an OSHA regulation would require employers to minimize the

health risks for lead exposure, but that the ADA requires an

employer to affirmatively ignore a known health risk for an

individual with a liver problem exposed to liver-toxic

chemicals.’

* One matter neither party has discussed is the issue of “reasonable

accommodation,” presumably because there is no way to avoid

exposure to liver-toxic substances in the job for which Mr. Echazabal

applied. However, if Chevron were required to hire Mr. Echazabal

as a plant helper despite the health risks imposed by his disability, he

would seem to be further entitled to “reasonable accommodation” of

that disability—including transfer out of the plant helper position.

Thus, a House Report explaining the term “reasonable

accommodation” used the example of a painter with a severe allergy

to a particular paint, stating that he would be entitled to the

“reasonable accommodation” of job reassignment if his position

entailed exposure to that paint. See H.R. Rep. No. 101-485(II1), at 29

(1990), reprinted at 1990 U.S.C.C.A.N. 445, 451-52. This further

underscores the unreasonable results that would flow from the Ninth

Circuit's rule that employers must allow disabled individuals to

assume the risk of injury. By its terms. the ADA requires that

employers enable qualified disabled individuals to avoid risks

associated with their disability.

In enacting Title | of the ADA, Congress repeatedly

referred to its broad overall goal of eradicating irrational or

unintentional discrimination against the disabled where simple

measures could be taken to enable disabled individuals to

participate in mainstream economic life. Congress referred to

the fact that the ADA was designed to compensate for

discrimination [that] often results from false

presumptions, generalizations,- misperceptions,

patronizing attitudes, ignorance, irrational fears, and

pernicious mythologies.

H.R. Rep. No. 101-485(II), at 30, reprinted at 1990

U.S.C.C_A.N. at 311. See also, id. at 33, reprinted at 1990

U.S.C.C.A.N. at 315; id. at 40, reprinted at 1990 U.S.C.C.A.N.

at 322; H.R. Rep. No. 101-48S(III), at 45, reprinted at 1990

U.S.C.C.A.N. at 468. Here, there is no contention or even

suggestion that Chevron’s application of its health standards to

Mr. Echazabal was due to any consideration beyond Chevron’s

legitimate, sound, and sensible concerns for the general safety

of its employees.

It would not serve the purposes of the Act and, indeed,

would undermine numerous state and federal laws that reflect

a broad public policy interest in advancing employee and public

health and safety, for courts to adopt an interpretation of the

ADA under which employers could not properly consider

worker safety in filling jobs with disabled individuals. This

Court should grant the Petition for Writ of Certiorari to reverse

the decision of the court below and establish that legitimate

worker safety qualifications are permissible under the ADA.

CONCLUSION

For the foregoing reasons, Amici respectfully request that

this Court should GRANT the Petition for Writ of Certiorari.

DATED: May, 2001.

Respectfully submitted,