Amicus Curiae Brief — Chevron USA Inc. v. Echazabal

Supreme Court, U.S.

“TITLED

DEC 21 200

CHEVRON U:S.A., INC.

Petitioner,

Vv.

MARIO ECHAZABAL,

Respondent.

On Writ of Certiorari to the

United States Court of Appeals

for the Ninth Circuit

BRIEF AMICI CURIAE OF THE

EQUAL EMPLOYMENT ADVISORY COUNCIL

AND THE NATIONAL ASSOCIATION

OF MANUFACTURERS

IN SUPPORT OF PETITIONER

JAN S. AMUNDSON ANN ELIZABETH REESMAN

General Counsel Counsel of Record

QUENTIN RIEGEL MCGUINESS, NORRIS &

Deputy General Counsel WILLIAMS, LLP

NATIONAL ASSOCIATION OF 1015 Fifteenth Street, N.W.

MANUFACTURERS Suite 1200

1331 Pennsylvania Avenue, N.W. Washington, D.C. 20005

Washington, D.C. 20004 (202) 789-8600

(202) 637-3000

Attorneys for Amicus Curiae Attorneys for Amicus Curiae

National Association of Equal Employment Advisory

Manufacturers Council

WILSON-EPES PRINTING CO., INC. — (202) 789-0096 — WASHINGTON, D.C. 20001

TABLE OF CONTENTS

TABLE OF AUTHORITIES

INTEREST OF THE AMICI CURIAE

STATEMENT OF THE CASE

SUMMARY OF ARGUMENT

THE ADA PERMITS EMPLOYERS TO USE

SAFETY-BASED, JOB-RELATED QUALIFICA-

TION STANDARDS EVEN IF THEY SCREEN

OUT INDIVIDUALS WITH DISABILITIES

A. The Capacity To Perform a Job Without

Incurring Serious Injury or Death Is a

Fundamental Qualification

The Statutory Language Explicitly Permits

Employers To Use “Job-Related” Qualifi-

cation Standards, Which Necessarily

Include Safety-Based Standards

The Existence of the “Direct Threat”

Defense Does Not Preclude the Application

of Job-Related Safety Standards Designed

To Prevent Harm to Individual Employees...

1. The Ninth Circuit’s inverted reading of

the two “qualification standards”

defenses is incorrect

The EEOC’s regulation applying the

“direct threat” analysis to all safety-

related issues incorrectly contradicts

the statutory language governing

the use of more broadly crafted

TABLE OF CONTENTS—Continued

Page

D. Public Policy Dictates That Employers Be

Permitted To Develop and Apply Adequate

a IS RT Ts A 21

In rTTUIIITTITTITTIT Tessdisttlscsentsiniesscindpsihcsdensstshssemenninesemeseemeneece 24

iii

TABLE OF AUTHORITIES

FEDERAL CASES

Albertson's, Inc. v. Kirkingburg, 527 U.S. 555

Bragdon v. Abbott, 524 U.S. 624 (1998) .........0000+

Chevron, U.SA., Inc. v. Natural Resources

Defense Council, 467 U.S. 837 (1984) ........0000+

Christensen v. Harris County, 529 U.S. 576

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

EEOC v. Exxon Corp., 203 F.3d 871 (Sth

Foreman v. Babcock & Wilcox Co., 117 F.3d 800

GE Ga Ge Paseencsnsscnssnscsctescscscsssscesssessssvcsmessnse

International Union, UAW, v. Johnson Controls,

me) |

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

ot 8 ee

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

Le ee

Leonberger v. Martin Marietta Materials, Inc.,

231 F.3d 396 (7th Cir. 2000) ..........ccccccereeseeeeeees

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

ij j¢ 4,

Murphy v. United Parcel Serv., Inc., 527 US.

|

Reed v. Heil Co., 206 F.3d 1055 (llth

School Board of Nassau County v. Arline, 480

FR Le

Sutton v. United Air Lines, Inc., 527 USS.

ae

Toyota Motor Mfg., Inc. v. Williams, 121 S. Ct.

iv

TABLE OF AUTHORITIES—Continued

Turco v. Hoechst Celanese Corp., 101 F.3d 1090

GG, Fe ennnctseneaspesornensinanpeniaineciiiibictnin 18

U.S. Airways v. Barnett, 121 S. Ct. 1600 (2001)... 3

Webb v. Clyde L. Choate Mental Health and

Dev. Ctr., 230 F.3d 991 (7th Cir. 2000)............. 6,7,9

STATUTES

Americans with Disabilities Act,

So a © Be I iteccectterettcemennniion 6

eR ) 2,8

Sb eaiiiee © ae Oe ctctnctcccrntesenmmenesnsareaiatues 17

Ne ae 8

Se ie 0 Se cetenicreeestnresitintameiteniein 8

42 U.S.C. § 121 12(D)(S)(A)..........ceccescereereereenes 10

A 7,11

a eile Ae CE cirictctcrstinninindcinepesinantniinines passim

oR ee 7, 16, 17, 18

Occupational Safety and Health Act of 1970,

re Oy cecnescccsenttnnssecctiimisinnintetingstiniis 21

Rehabilitation Act of 1973,

ase Oe re Oe i ceraiececmtiitcnnniitinbiincinnenn 6

GP lies O Fe ccnticmmnncterinaieannittiiitemmentes 2, 15

ee sutenoaptannes 8

Title VII of the Civil Rights Act of 1964,

Se a Se Oe I erenstsesitentncsniitipeetcenesis 10, 11

California Fair Employment and Housing Act,

Se Se Ge Fe crrcenecsnccncnnitiascctinsatinin 6

REGULATIONS

29 C.F.R. § 1630.2(q) (2001).........c.cccceseesersereesneees 15, 19

SO CIR. § 1GSR Bi) CABIN) ccccccsccsncccsscsnsssssssscsssee 7, 19

29 C.F.R. pt. 1630, App. § 1630.10 (2001)........... 15

v

TABLE OF AUTHORITIES—Continued

29 C.F.R. pt. 1630, App. § 1630.15(b) (2001).......

29 C.F.R. pt. 1630, App. § 1630.15(c) (2001).......

45 C.F.R. § 84.3(K)(1).....cccccesserssrserserserseneensnnsesenees

45 C.F.R. pt. 84, App. A(a)(S) .......c-ceseeeeesersesenees

56 Fed. Reg. 8578 (Feb. 28, 1991) ..........-ssssesssseees

57 Fed. Reg. 48,084 (October 21, 1992)..........++++

61 Fed. Reg. 19,336 (May 1, 1996)...........ssseseees

LEGISLATIVE HISTORY

H.R. Conf. Rep. No. 101-596 (1990), reprinted

in 1990 U.S.C.C.ALN, S65 .....cccccerseeseeeeeneeneees 14, 15, 17

H.R. Rep. No. 101-485, pt. 2 (1990), reprinted in

1990 U.S.C.C.A.N. 303 ......cccccrscessssserreeeeensseenees passim

H.R. Rep. No. 101-485, pt. 3 (1990), reprinted in

1990 U.S.C.C.ALN. 445 ...cccccsceeneerneeeeeeensees 8, 13, 14, 17

S. Rep. No. 101-116 (1989).........sserseeeneees 8, 12, 13, 16

MISCELLANEOUS

William Atkinson, On-the-job safety starts at the

top, Business & Health (Sept. 1999)...........-.:0+ 22

weg

a Ww oO

—

IN THE

Supreme Court of the Anited States

No. 00-1406

CHEVRON U.S.A.., INC.

Petitioner,

Vv.

MARIO ECHAZABAL,

Respondent.

On Writ of Certiorari to the

United States Court of Appeals

for the Ninth Circuit

BRIEF AMICI CURIAE OF THE

EQUAL EMPLOYMENT ADVISORY COUNCIL

AND THE NATIONAL ASSOCIATION

OF MANUFACTURERS

IN SUPPORT OF PETITIONER

The Equal Employment Advisory Council and the National

Association of Manufacturers respectfully submit this brief as

amici curiae. Letters of consent from both parties have been

filed with the Clerk of the Court. The brief urges reversal of

the decision below and thus supports the position of

Petitioner Chevron U.S.A., Inc.'

' Counsel for the amici curiae authored this brief in its entirety. No

person or entity, other than the amici curiae, their members, or their

counsel, made a monetary contribution to the preparation or submission of

the brief.

2

INTEREST OF THE AMICUS CURIAE

The Equal Employment Advisory Council (EEAC) is a

nationwide association of employers organized in 1976 to

promote sound approaches to the elimination of discrim-

ination in employment. Its membership includes over 350 of

the nation’s largest private sector employers, collectively

employing over 20 million people throughout the United

States. EEAC’s directors and officers include many of

industry’s leading experts in the field of equal employment

opportunity. Their combined experience gives EEAC an

unmatched depth of knowledge of the practical, as well as

legal, considerations relevant to the proper interpretation and

application of equal employment policies and requirements.

EEAC’s members are firmly committed to the principles of

nondiscrimination and equal employment opportunity.

The National Association of Manufacturers (“NAM”) is

the nation’s largest multi-industry trade association. NAM

represents 14,000 member companies (including 10,000 small

and mid-sized manufacturers) and 350 member associations

serving manufacturers and employees in every industrial

sector and all 50 states. |

All of EEAC’s and NAM’s members are employers subject

to Title | of the Americans with Disabilities Act (ADA),

42 U.S.C. §§ 12111-12117. Moreover, many members are

federal contractors subject to Section 503 of the Rehabilita-

tion Act of 1973, 29 U.S.C. § 793, which requires covered

employers to take affirmative action to employ and advance

in employment qualified individuals with disabilities.

In addition, EEAC’s and NAM’s members include

chemical and other manufacturing companies, oil refineries,

airlines, pharmaceutical manufacturers, railroads, health care

providers, nuclear power companies, and many others. Many

if not all of these companies have adopted safety-based

qualification standards addressing the risks presented by the

3

work environment. These standards are designed to prevent

workers from being injured or killed on the job, or from

killing or injuring others, either in the workplace or in the

general public. They can—and sometimes will—screen out

some individuals with disabilities because of potential

hazards formed by the combination of particular aspects

of the disability and some factor or factors present at

the worksite.

Thus, EEAC’s and NAM’s members have a direct interest

in the issue presented in this case—whether the ADA permits

an employer to impose as a qualification standard a require-

ment that a job candidate be capable of performing the

essential functions of a job safely, that is, without facing a

risk of serious injury or death. The court below ruled that an

employer can never defend against an ADA challenge either

by showing that performing the job safely is an “essential

function” rendering a particular individual unqualified due to

the increased risk posed by his disability, or that the plaintiff,

if placed in the job, would impose a “direct threat” to his own

health. The Ninth Circuit’s interpretation is contrary to the

language and spirit of the ADA as well as the decisions of

several other circuit courts of appeals.

Because of its interest in the proper application of the

ADA, EEAC filed extensive comments in response to the

Equal Employment Opportunity Commission’s Notice of

Proposed Rulemaking on its substantive regulations imple-

menting the employment provisions of the ADA. 56 Fed.

Reg. 8578 (Feb. 28, 1991) (codified at 29 C.F.R. Part 1630).

EEAC also has participated as amicus curiae in the private

sector ADA cases in this Court? as well as in the instant

case below.

? Toyota Motor Mfg., Inc. v, Williams, 121 S. Ct. 1600 (2001) (cert.

granted), US Airways v. Barnett, 121 S. Ct. 1600 (2001) (cert. granted),

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

4

Thus, the amici have an interest in, and a familiarity with,

the issues and policy concerns presented to the Court in this

case. Indeed, because of their experience in these matters, the

amici are well situated to brief the Court on the concerns of

the business community and the significance of this case to

employers. The amici seek to assist the Court by highlighting

the impact its decision in this case may have beyond the

immediate concerns of the parties to the case. Accordingly,

this brief brings to the attention of the Court relevant matter

that has not been brought to its attention by the parties.

STATEMENT OF THE CASE

Respondent Mario Echazabal worked for various inde-

pendent maintenance contractors at a Chevron, U.S.A.

refinery in El Segundo, California between 1972 and 1996.

Pet. App. 2a. In 1992, Echazabal applied for a job with

Chevron at the refinery. /d. During the pre-employment

medical examination, Dr. Philip Baily, a Chevron in-house

physician, determined that Echazabal had “an uncorrectable

liver abnormality, and should avoid exposure to solvents or

other liver toxic chemicals in c.der not to exacerbate his liver

problems.” Pet. App. 34a. Chevron rescinded its contingent

job offer. Pet. App. 2a. Echazabal subsequently was

diagnosed with “chronic Hepatitis C, a viral infection

characterized by ongoing liver inflammation.” Pet. App. 35a.

In 1995, Echazabal again applied for a job with Chevron.

Pet. App. 3a. Dr. Baily’s successor, Dr. Kenneth McGill,

conducted another pre-employment medical examination.

Pet. App. 35a. As part of this examination, Dr. McGill

reviewed Echazabal’s medical records, which revealed no

improvement in Echazabal’s condition. Pet. App. 35a-36a.

Dr. McGill also reviewed the written “job summaries” which

Parcel Serv., Inc., 527 U.S. 516 (1999); Albertson's, Inc. v. Kirkingburg,

527 U.S. 555 (1999); Bragdon v. Abbott, 524 U.S. 624 (1998).

5

Chevron prepares for every job, listing the functions of the

position and the environmental conditions that will be

experienced on the job. The summary for the plant helper job

Echazabal sought listed “hydrocarbon liquids and vapors,

acid, caustic, refinery waste water and sludge, petroleum

solvents, oils, greases, and chlorine bleach in the work

environment.” Pet. App. 36a-37a.

Dr. McGill also spoke and corresponded with Dr. Zelman

Weingarten, M.D., Echazabal’s own physician. Dr. Wein-

garten told Dr. McGill that Echazabal “should not be

exposed” to the substances in the refinery. Pet. App. 37a.

In addition, Dr. McGill reviewed Echazabal’s medical

history, including recent exposures in the refinery. Pet. App.

37a-38a. As a result, “Dr. McGill came to the conclusion that

the hydrocarbons, chemicals, and solvents to which

Echazabal would be exposed working as a plant helper in the

coker unit would be dangerous to his health, or would

aggravate his chronic liver condition.” Pet. App. 38a. Dr.

McGill reviewed his conclusions with Chevron’s Medical

Director, who agreed. /d.

Dr. McGill then reported to William Saner, Chevron

Personnel Director, his opinion and that of Echazabal’s own

physician that Echazabal should not be exposed to liver toxic

chemicals. Saner reviewed the same written job summaries

as had Dr. McGill. Based on this information and his own

knowledge of the job, Saner decided to withdraw the

contingent job offer that had been made to Echazabal. Pet.

App. 38a-39a.

Chevron notified Echazabal that it was withdrawing his job

offer, and also asked Irwin Industries, the contractor that

employed Echazabal, to remove him from the position in

which he was working in Chevron’s refinery, due to the

chemical exposure. Pet. App. 39a. Irwin did so, and sent

Echazabal to the Long Beach Medical Clinic for evaluation.

6

Pet. App. 40a. There, Dr. Brian Tang, who holds a board

certification in occupational medicine and teaches occupa-

tional medicine at the University of Southern California

Medical School, concluded that “exposure to liver toxins

would harm and probably kill Echazabal.” Jd.

Echazabal sued Chevron and Irwin. The district court

below granted summary judgment in favor of Chevron on

Echazabal’s claims under the Americans with Disabilities

Act, 42 U.S.C. § 12101 et seq., the California Fair Employ-

ment and Housing Act, Cal. Gov’t Code § 12940, and

the Rehabilitation Act of 1973, 29 U.S.C. § 701 et seq.

Pet. App. 32a-57a.

The U.S. Court of Appeals for the Ninth Circuit reversed

the district court’s decision. Pet. App. la-29a. In a 2-1

decision, the Ninth Circuit ruled that Chevron could not

defend its decision on the basis that Echazabal would be at

great risk to his personal safety if it placed him in the job, nor

could the company consider him unqualified for the job on

that account. In dissent, Judge Trott called the majority’s

decision “Pickwickian,” Pet. App. 23a, and “bizarre.” Pet.

App. 21a.

Chevron sought review by this Court, which was granted

on October 29, 2001.

SUMMARY OF ARGUMENT

The Americans with Disabilities Act (ADA), 42 U.S.C.

§ 12101 et seg., which prohibits discrimination in employ-

ment against a qualified individual with a disability, permits

an employer to exclude as unqualified an individual whose

medical condition would place him at risk should he

encounter the hazards presented on the job. Being able to

perform a job without being seriously injured or killed may

be the most basic necessary job qualification. Cf Foreman v.

Babcock & Wilcox Co., 117 F.3d 800 (Sth Cir. 1997); Webb

7

v. Clyde L. Choate Mental Health and Dev. Ctr., 230

F.3d 991 (7th Cir. 2000); Reed v. Heil Co., 206 F.3d 1055

(11th Cir. 2000).

Accordingly, the ADA provides explicitly for the use of

qualification standards and selection criteria that are “job-

related” and “consistent with business necessity” even if they

tend to screen out an individual with a disability. 42 U.S.C.

§§ 12112(b)(6), 12113(a). Such qualification standards

necessarily must include safety-based standards designed to

protect the health of the individual employee, as well as

others in the workplace and the general public. Thus, the

Ninth Circuit’s holding, that the employer has to place an at-

risk employee in a job even though doing so contravenes its

own safety standards and medical advice, is contrary both to

the law and to common sense.

The statute also provides that an employer’s qualification

standards may include a requirement that an individual not

pose a direct threat to others in the workplace. 42 U.S.C.

§ 12113(b). The Equal Employment Opportunity Commis-

sion’s regulations interpreting the ADA make this analysis

applicable not only to threats to others, but to threats to the

individual as well. 29 C.F.R. § 1630.2(r). The agency’s

administrative interpretation making an individualized “direct

threat” analysis the only way to justify a safety standard

overreaches the statute, however.

As a practical matter, employers have a vested interest in

protecting the health and safety of their employees. Beyond

the fundamental considerations of decency and responsibility

in not willingly placing another human being at risk, a

company has a significant business interest in protecting its

“workforce capital” in which it has invested considerable

time and expense.

8

ARGUMENT

THE ADA PERMITS EMPLOYERS TO USE

SAFETY-BASED, JOB-RELATED QUALIFICA-

TION STANDARDS EVEN IF THEY SCREEN OUT

INDIVIDUALS WITH DISABILITIES

A. The Capacity To Perform a Job Without Incur-

ring Serious Injury or Death Is a Fundamental

Qualification

Title I of the Americans with Disabilities Act (ADA),

42 U.S.C. §§ 12111-12117, prohibits discrimination in em-

ployment against a “qualified individual with a disability”

because of the disability. 42 U.S.C. § 12112(a) (emphasis

added). It defines “qualified individual with a disability” as

“an individual with a disability who, with or without reason-

able accommodation, can perform the essential functions of

the employment position that such individual holds or

desires.” 42 U.S.C. § 12111(8) (emphasis added).? The

statute is explicit that the employer’s judgment as to what job

functions are essential must be considered in making this

determination. /d.

* The ADA does not define the term “essential functions.” The concept

derives from the regulations issued under Section 504 of the

Rehabilitation Act of 1973, 29 U.S.C. §794. See, eg., 45 CFR.

§ 84.3(k)(1). When the Department of Health and Human Services issued

the Section 504 regulations, it explained that this term was used to

emphasize that “handicapped persons should not be disqualified simply

because they may have difficulty in performing tasks that bear only a

marginal relationship to a particular job.” 45 C.F.R. pt. 84, App. A(a)(5)

(emphasis added). The Committee Reports on the ADA similarly

characterize “essential” functions as being “non-marginal.” S. Rep. No.

101-116, at 26 (1989) (Senate Labor Committee); H.R. Rep. No. 101-485,

pt. 2, at 55 (1990), reprinted in 1990 U.S.C.C.A.N. at 337 (Education and

Labor Committee); H.R. Rep. No. 101-485, pt. 3, at 33 (1999), reprinted

in 1990 U.S.C.C.A.N. at 455-56 (House Judiciary Committee).

9

Perhaps the most elemental qualification for a job is being

able to perform its essential functions, whatever they may be,

without seriously injuring or killing oneself. An individual

may have the physical capabilities to do a job’s tasks yet still

not be “qualified” for the job, because the doing would be his

undoing. See, e.g., Foreman v. Babcock & Wilcox Co., 117

F.3d 800, 807-09 (Sth Cir. 1997) (holding that employee who

could not perform the essential function of carrying materials

into a shop area because the proximity to welding equipment

could cause electromagnetic interference with his pacemaker

was not “qualified” for the job); Webb v. Clyde L. Choate

Mental Health and Dev. Ctr., 230 F.3d 991, 999 (7th Cir.

2000) (holding that psychologist who could not perform

essential function of interacting with contagious and/or

violent patients because of risk of injury due to his asthma,

osteoporosis and weakened immune system was not

“qualified”); Reed v. Heil Co., 206 F.3d 1055, 1063 (11th Cir.

2000) (holding that a plaintiff with a back condition could not

perform essential functions of his job, in part because “test-

driving the garbage trucks would painfully aggravate [his]

back.”). In each of these cases, the employee was physically

capable, in the most basic sense, of doing the job in question,

but could not as a practical matter do it safely because of the

effect on his medical condition. Cf Leonberger v. Martin

Marietta Materials, Inc., 231 F.3d 396, 399 (7th Cir. 2000)

(upholding summary judgment for employer who discharged

front loader operator with sleep apnea, noting that “an

employee who is less than fully alert could harm himself and

others if he is operating a front loader or many other kinds of

heavy industrial equipment.”). This is true even where the

individual himself is willing to endure the pain and suffer the

risk involved. See, e.g., Koshinski v. Decatur Foundry, Inc.,

177 F.3d 599, 602 (7th Cir. 1999) (holding employee

unqualified despite his “self-destructive wish to return to this

particular job. .. .”).

10

The ADA’s legislative history confirms this point. In its

discussion of post-offer, pre-employment medical examin-

ations, the Report of the House Education and Labor

Committee clarifies that a candidate could be disqualified on

the basis of potential future injury if the examining physician

found that there was a “high probability of substantial

harm” if the candidate performed the job in question.

H.R. Rep. No. 101-485, pt. 2, at 73 (1990), reprinted in 1990

U.S.C.C.AN. at 355.4

For this reason, the Ninth Circuit’s reliance on this Court’s

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

and /nternational Union, UAW, v. Johnson Controls, Inc.,

499 U.S. 187 (1991), both of which involved challenges

under Title VII of the Civil Rights Act of 1964 (Title VII),

42 U.S.C. 2000e et seg., as amended, to broad-based rules

disqualifying women from employment, is greatly misplaced.

The Ninth Circuit read both cases as creating a federally-

protected right for “all individuals to decide for themselves

whether to put their own health and safety at risk,” describing

it as a type of “freedom of choice.” Pet. App. 10a.

The Ninth Circuit erroneously confused general, specula-

tive risks with specific, predictable ones. Dothard and

Johnson Controls both involved comprehensive general rules

excluding all, or nearly all, women.’ If the instant case

involved a rule disqualifying all individuals with disabilities

from working at the refinery, then Dothard and Johnson

* Of course, the candidate could not be rejected if reasonable

accommodation could avert the harm without undue hardship on the

employer. 42 U.S.C. § 12112(b)(5)(A). But ignoring the danger would

i) orlogeaeaninegeeun

* Indeed, even if Dothard is read as confirming a woman's general

right to choose a potentially dangerous career, it ruled that women could

be excluded from jobs as prison guards in “contact” positions because of

“a substantial security problem, directly linked to the sex of the prison

guard.” 433 U.S. at 336.

ee -_——

Controls \ikely would be analogous. But safety standards

such as the one in question here are far more narrowly drawn,

excluding only those workers whose particular sensitivities

make exposure to liver-toxic chemicals a substantial risk.

Thus, Title VII’s prohibition against broad gender-based

exclusionary rules that cannot be justified as a bona fide

occupational qualification has no bearing on the case at bar.

B. The Statutory Language Explicitly Permits

Employers To Use “Job-Related” Qualification

Standards, Which Necessarily Include Safety-

Based Standards

Employer safety standards designed to preserve the health

and safety of the individual employee, other employees and

the public are necessarily “qualification standards” under the

ADA. Cf. Sutton v. United Air Lines, Inc., 527 U.S. 471, 490

(1999) (“By its terms, the ADA allows employers to prefer

some physical attributes over others and to establish physical

criteria”). Indeed, the ADA states twice that employers may

use qualification standards and other selection criteria that are

“job-related” and “consistent with business necessity” even if

they tend to screen out individuals with disabilities.

First, Section 102(b) of the ADA, which defines the

term “discriminate” as used in the general prohibition of

Section 102(a), states in relevant part that:

(b) CONSTRUCTION—-As used in subsection (a), the

term “discriminate” includes—

(6) 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

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). Thus, the very

statutory provision raising the possibility that a qualification

12

standard or selection criterion might discriminate on the basis

of disability also expressly recognizes the legitimacy of such

a standard or criterion if it “is shown to be job-related for

the position in question and is consistent with business

necessity.” Id.

Second, the statute provides a defense in much the same

terms, stating:

IN GENERAL—It may be a defense to a charge of

discrimination under this chapter 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 subchapter.

42 U.S.C. § 12113(a) (emphasis added). The inclusion of this

defense makes it doubly clear that qualification standards or

selection criteria that are “job-related” and “consistent with

business necessity” are permissible under the ADA even if

they screen out individuals with disabilities.

The legislative history of the ADA confirms that “business

necessity” can justify qualification standards that establish

physical job criteria. Both congressional committees with

direct authority over this part of the legislation, the Senate

Committee on Labor and Human Resources and the House

Committee on Education and Labor, made this point.

Under this legislation an employer may still devise

physical and other job criteria and tests for a job so long

as the criteria or tests are job-related and consistent with

business necessity. Thus, for example, an employer can

adopt a physical criterion that an applicant be able to lift

fifiy pounds, if that ability is necessary to an individual’ s

ability to perform the essential function in question.

S. Rep. No. 101-116, at 27 (1989). See also H.R. Rep. No.

101-485, pt. 2, at 56 (1990), reprinted in 1990 U.S.C.C.A.N.

13

303, 338. Both committees explained this provision as a

“requirement that job criteria actually measure ability

required by the job” to guard against employment decisions

based on “stereotypes and misconceptions about the abilities,

or more correctly the inabilities, of persons with disabilities

” §. Rep. No. 101-116, at 37 (1989); H.R. Rep. No. 101-

485, pt. 2, at 71 (1990), reprinted in 1990 US.C.CAN. at

353. They explained:

If a person with a disability applies for a job and meets

all selection criteria except one that he or she cannot

meet because of a disability, the criterion must concern

an essential, non-marginal aspect of the job, and be

carefully tailored to measure the person’s actual ability

to do an essential function of the job. Jf the criterion

meets this test, it is nondiscriminatory on its face and it

is otherwise lawful under the legislation.

S. Rep. No. 101-116, at 37-38 (1989); H.R. Rep. No. 101-

485, pt. 2, at 71 (1990), reprinted in 1990 U.S.C.C.A.N.

at 353-54 (emphasis added).° See also H.R. Rep. No.

101-485, pt. 3, at 32 (1990), reprinted in 1990 U.S.C.C.A.N.

445, 454-55.

Importantly, the ADA’s legislative history also confirms

that Congress intended for safety-based medical standards to

be evaluated under the “business necessity” rule. As the

House Committee on the Judiciary stated, “The Committee

does not intend for this Act to override any legitimate medical

standards established by federal, state or local law, or by

employers for applicants for safety or security sensitive

positions, if the medical standards are consistent with [the

° The explanation continues that “the criterion may not be used to

exclude an applicant with a disability if the criterion can be satisfied by

the applicant with a reasonable accommodation. A reasonable accommo-

dation may entail adopting an alternative, less discriminatory criterion.”

Id. The Committees, did not, however, suggest any standards for how

such a criterion could or should be identified or evaluated.

4

ADA\].” H.R. Rep. No. 101-485, pt. 3, at 43 (1990), reprinted

in 1990 U.S.C.C.A.N. at 466 (emphasis added). See also

H.R. Rep. No. 101-485, pt. 2, at 74 (1990), reprinted in 1990

U.S.C.C.A.N. at 356-57; H.R. Conf. Rep. No. 101-596, at 59-

60 (1990), reprinted in 1990 U.S.C.C.A.N. 565, 567-69.

Indeed, the House Labor Committee focused specifically on

safety-sensitive positions in explaining when medical exam-

inations for employees might be “job-related” and “consistent

with business necessity,” stating:

Section 102(c)(4) prohibits medical exams of employees

unless job-related and consistent with business necessity.

Certain jobs require periodic physicals in order to

determine fitness for duty. For example, Federal safety

regulations require bus and truck drivers to have a

medical exam at least biennially. In certain industries,

such as air transportation, physical qualifications for

some employees are critical, Those employees, for

example, pilots, may have to meet medical standards

established by Federal, State or local law or regulation,

or otherwise fulfill requirements for obtaining a medical

certificate, as a prerequisite for employment. In other

instances, because a particular job function may have a

significant impact on public safety, e.g. flight attendants,

an employee’s state of health is important in establishing

job qualifications, even though a medical certificate

might not be required by law.

H.R. Rep. No. 101-485, pt. 2, at 74 (1990), reprinted in

1990 U.S.C.C.A.N. at 356-57. Similarly, the Conference

Report explains:

[Ijn certain industries, such as air transportation,

applicants for security and safety related positions are

normally chosen on the basis of many competitive

factors, some of which are identified as a result of post-

offer pre-employment medical examinations. Thus, after

the employer receives the results of the post-offer

medical examination for applicants for safety or security

sensitive positions, only those applicants who meet the

15

employer's criteria for the job must receive confirmed

offers of employment, so long as the employer does not

use those results of the exam to screen out qualified

disabled individuals on the basis of disability.

H.R. Conf. Rep. No. 101-596, at 59 (1990), reprinted in 1990

U.S.C.C.A.N. at 568 (emphasis added). Thus, the legislative

history supports the appropriateness of the “business

necessity” defense to respond to a challenge to a safety-based

physical standard.

The Equal Employment Opportunity Commission’s regula-

tions interpreting the ADA define “qualification standards”

appropriately as “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). Similarly, the agency’s

Interpretive Guidance regarding the statute’s use of the term

“qualification standards” states that “[t)his provision is

applicable to all types of selection criteria, including safety

requirements ....” 29 C.F.R. pt. 1630, App. § 1630.10

(2001) (emphasis added).

Similarly, in conforming to the ADA its regulations

interpreting § 503 of the Rehabilitation Act of 1973, the U.S.

Department of Labor, Office of Federal Contract Compliance

Programs (OFCCP) also indicated its view that safety is a

“business necessity” issue. When it proposed deleting

specific language stating that physical and mental job

qualification standards must be “consistent with safe

performance of the job,” the agency explained that “OFCCP

has determined it unnecessary to incorporate the reference to

‘safe performance’ in the proposal because that concept is

16

subsumed by the concept of business necessity.” 57 Fed.

Reg. 48,084, 48,098 (October 21, 1992).’

Accordingly, there appears to be a consistent, common-

sense interpretation among both the congressional committees

that passed on the ADA and the federal agencies that have

interpreted it that safety-based qualification standards are

appropriate selection criteria.

C. The Existence of the “Direct Threat” Defense

Does Not Preclude the Application of Job-Related

Safety Standards Designed To Prevent Harm to

Individual Employees

1. The Ninth Circuit’s inverted reading of

the two “qualification standards” defenses is

incorrect.

As noted, the ADA creates an explicit defense for

employers who use “qualification standards” that are “job-

related and consistent with business necessity.” 42 U.S.C.

§ 12113(a). As a subset to this defense, the statute also

provides that “[t]he 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).

Congress added this provision to codify a point this Court

made in School Board of Nassau County v. Arline, that “A

person who poses a significant risk of communicating an

infectious disease to others in the workplace will not be

otherwise qualified for his or her job if reasonable

accommodation will not eliminate that risk.” 480 U.S. 273,

287 n.16 (1987). See S. Rep. No. 101-116, at 40 (1989); H.R.

Rep. No. 101-485, pt. 2, at 76 (1990), reprinted in 1990

” The revised regulations adopted by the agency reflect this change.

61 Fed. Reg. 19,336, 19,538 (May 1, 1996) (codified as 41 C.F.R.

§ 60-74 1.44(c)) (formerly 41 C.F.R. § 60-741.6(c)).

17

U.S.C.C.A.N. at 358-59; H.R. Rep. No. 101-485, pt. 3, at 45

(1990), reprinted in 1990 U.S.C.C.A.N. at 468.° The defense

thus addresses situations such as that presented in Arline,

where an individual meets all of the employer’s other

qualification standards but still presents a risk to others.

H.R. Rep. No. 101-485, pt. 3 at 45-46, reprinted in 1990

U.S.C.C.A.N. at 468-69.

Thus, under the plain language of § 12113(a), an employer

may use any qualification standard that is “job-related and

consistent with business necessity” even if it screens out 21

individual with a disability. 42 U.S.C. § 12113(a). One such

standard may be that the individual not “pose a direct threat

to the health or safety of other individuals in the workplace.”

42 U.S.C. § 12113(b). To use the “direct threat” provision,

an employer must meet its specified threshold of proof, drawn

directly from Arline—that placing the individual in the job

would present “a significant risk to the health or safety of

others, that cannot be eliminated by reasonable accommo-

dation.” 42 U.S.C. § 12111(3).

The Ninth Circuit mistakenly read these two provisions as

mutually exclusive, inferring that because the “direct threat”

defense refers to threats to others, the broader language

dealing with qualification standards cannot be utilized to

address other safety risks, such as a risk to the individual him-

or herself. This reading is simply wrong, for two reasons.

First, § 12113(b) states unequivocally that “the term

‘qualification standards’ may include a requirement that an

individual shall not pose a direct threat . . .”; it says nothing

about what the term does not include. 42 U.S.C. § 12113(b)

(emphasis added).

* In conference, the provision was expanded to cover all threats to

others in the workplace. H.R. Conf. Rep. No. 101-596, at 60 (1990),

reprinted in 1990 U.S.C.C.A.N. at 569.

18

Accordingly, the existence of a specific “direct threat”

defense applicable to risks to others does not preclude an

employer from instituting and applying safety-based qualifi-

cation standards that address situations in which an indi-

vidual’s medical condition, when combined with conditions

on the job, poses a “significant risk” to the individual’s health

or safety. In Moses v. American Nonwovens, Inc., for exam-

ple, the Eleventh Circuit concluded that an individual with

epilepsy was not qualified for his job as a product inspector in

a manufacturing plant because “[e]ach of Moses’s assigned

tasks presented grave risks to an employee with a seizure

disorder.” 97 F.3d 446, 447 (llth Cir. 1996). See also

LaChance v. Duffy’s Draft House, Inc., 146 F.3d 832, 835

(11th Cir. 1998) (holding that retaining an employee with

epilepsy in his job as a line cook “would have posed a risk of

harm to himself and others .. .”). In Turco v. Hoechst

Celanese Corporation, 101 F.3d 1090 (Sth Cir. 1996), the

court mentioned the “direct threat” provision when holding

that the plaintiff, who testified that his diabetes, among other

things, caused occasional loss of concentration so severe that

he could not remember his name, was “unqualified due to the

safety risk that he imposes upon himself and others” at the

chemical manufacturing plant where he worked. /d. at 1094.

Noting that the job required “work with complicated

machinery and dangerous chemicals,” the Fifth Circuit

described the situation as “a walking time bomb and woe unto

the employer that places an employee in that position.” /d.

Second, the Ninth Circuit’s version simply defies common

sense. 42 U.S.C. § 12113(b) mentions only “a direct threat

to the health or safety of other individuals in the workplace

... (emphasis added); it says nothing about risks to others

outside the workplace, e.g., the general public. The Ninth

Circuit’s misplaced “expressio unius est exclusio alterius”

analysis thus would foreclose not only those qualification

standards designed to guard against risks to the individual,

but those intended to prevent risks to the public as well.

19

This cannot be. As noted above, the ADA’s legislative

history is replete with references to the proper use of job-

related standards designed to protect the safety and security

of the general public. Congress unmistakably intended for

employers to use properly-crafted job qualifications to ensure

that the public would not be placed at risk. Indeed, if the

ADA were read to preclude employers from imposing these

requirements, the potential impact on public safety would be

significant, to say nothing of the consequent damage to the

employer’s business, such as potential tort liability and loss of

public favor.

2. The EEOC’s regulation applying the “direct

threat” analysis to all safety-related issues

incorrectly contradicts the statutory lang-

uage governing the use of more broadly

crafted safety standards

One of the EEOC’s regulations interpreting the ADA

describes the “direct threat” defense as applicable to all

safety-related medical standards, regardless of whether the

hazard is to the individual’s own safety or that of others.

29 C.F.R. § 1630.2(r) (2001). The regulation does not

explicitly present the “direct threat” defense as the sole

method for defending a safety standard, but the agency’s

interpretations do.” Despite its own regulatory language

quoted above, listing “safety” as a basis for a qualification

standard generally, 29 C.F.R. § 1630.2(q) (2001), the EEOC’s

Interpretive Guidance issued in conjunction with its

regulations expresses the view that the “direct threat”

provision is the only avenue for an employer to show that a

* Indeed, if the agency viewed it as merely an option, it would not be

an unreasonable one. As shown above, an employer who shows that

placing a particular person with a disability into a particular position

would impose a “direct threat” to that person's health certainly has shown

that the person is not qualified for the job. The EEOC does not see it as

optional, however.

20

safety-related qualification standard is “job-related and

consistent with business necessity.” 29 C.F.R. pt. 1630, App.

§§ 1630.15(b) and (c) (2001).'° See also Albertson’s, Inc. v.

Kirkingburg, 527 U.S. 555, 569 (1999) (citing Brief for

United States et al. as Amici Curiae).

As this Court observed in Albertson’s, since the EEOC’s

construction may place a greater burden on safety standards

than, for example, a typing test, there is a very real question

whether the agency’s interpretation is valid. See 527 U.S. at

569 n.15 (noting that “it might be questioned whether the

Government’s interpretation, which might impose a higher

burden on employers to justify safety-related qualification

standards than other job requirements, is a sound one”). The

Fifth Circuit already has conclusively ruled the EEOC’s

construction unsound. EEOC v. Exxon Corp., 203 F.3d 871

(Sth Cir. 2000) (holding that across-the-board safety based

qualification standards need not be subjected to the “direct

threat” analysis). As shown above, and as the Fifth Circuit

ruled in Exxon, a general safety-based qualification standard

is properly analyzed under 42 U.S.C. § 12113(a), while “[t}he

direct threat test applies in cases in which an employer

responds to an individual employee’s supposed risk that

is not addressed by an existing qualification standard.” 203

F.3d at 875.

'° Although the Interpretive Guidance was published for notice and

comment at the same time as the EEOC’s regulations interpreting Title I

of the ADA, it is explicitly labeled “Interpretive Guidance” and therefore

is not subject to deference under Chevron, U.S.A., Inc. v. Natural

Resources Defense Council, 467 U.S. 837 (1984). See Christensen v.

Harris County, 529 U.S. 576, 587 (2000) (“Interpretations such as those

in opinion letters—like interpretations contained in policy statements,

agency manuals, and enforcement guidelines, all of which lack the force

of law—do not warrant Chevron-style deference”).

21

D. Public Policy Dictates That Employers Be

Permitted To Develop and Apply Adequate

Safety Standards

Employers must be allowed to develop and apply safety

standards to determine if an employee is qualified. In today’s

workplace, health and safety on the job is a top priority. The

Occupational Safety and Health Act of 1970 requires each

employer to “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 employees [and to] comply with

occupational safety and health standards promulgated under

this [Act].” 29 U.S.C. § 654(a). In this safety-conscious

atmosphere, an employer simply cannot assign a person to a

job knowing that serious injury or death is the likely result.

In many work environments, there will be factors present

that, while posing no particular risk to healthy employees,

present a grave danger to someone with a specific medical

condition. Therefore, when considering whether an employee

or applicant is “qualified’ to perform a job, any reasonable

employer will consider, where appropriate, the effect of

hazards posed by the combination of the individual’s

particular sensitivities and likely exposures on the job.

It simply does not make sense to ignore a medically-

established prediction of future harm merely because the

individual is willing to risk his or her health. Indeed, the

basic purposes of the ADA proceed from the premise that it is

in society’s interest to make use of all human resources.

Allowing individuals to endanger their health—and future

role as productive citizens—by allowing them to make

incautious judgments regarding what they can and cannot do

in the face of contrary expert medical opinion, would

contradict this premise directly. Recognizing that injuries

impose a cost on society, it makes sense not to so squander

our resources. Many states have reached a similar conclu-

22

sion, adopting laws requiring motorcyclists to wear helmets

and automobile drivers and passengers to wear seat belts.

Employers know this already. In addition to fundamental

human reasons for not wanting their employees to be hurt,

employers have a considerable business obligation to protect

their valuable workforce capital. A safer workforce is a more

efficient and productive one and, ultimately, more profitable.

Accordingly, keeping their workers alive and safe is the

highest priority for conscientious businesses today. Besides

the human price, each workplace injury costs the employer a

significant amount in lost productivity as well as the time and

expense of recruiting, placing, and training a replacement.

For example, one safety-conscious construction firm, whose

lost-time injury rate was one in 5,000,000 hours, well below

the national rate of 9 in 200,000 hours, reported that “the vast

majority of [its] projects come in at least 10 percent ahead of

schedule and under budget, much of it a direct result of the

company’s stellar safety performance. Since 1997, the firm

has saved $6.9 million as a result of cost underruns.”

William Atkinson, On-the-job safety starts at the top,

Business & Health (Sept. 1999).

For all of these reasons, businesses proudly count and

display the number of injury-free workdays at a site. Many

place enormous emphasis on safety incentive awards. The

typical American workplace today displays a gallery of safety

placards—not only those mandated by regulatory agencies,

but safety reminders that convey the commitment of the

employer itself, such as “Safety is our business.”

While some individuals may be courageous or reckless

enough to ignore a doctor’s warning, the employee is not the

only one with a stake in the matter. Employers must take

preventive measures to ensure that employees are able to

perform the essential functions of their jobs in a safe

manner-—that is, without being killed or injured because of an

23

increased risk formed by the juxtaposition of on-the-job

hazards and the employee’s own medical condition. An

employer that fails to do so will have a difficult time

convincing anyone, be it a jury or the Occupational Safety

and Health Administration, that it should not be accountable

because it was fulfilling its obligation under the ADA. While

compliance with the ADA, as a federal law, may in theory

preempt other claims, once an accident has occurred, it will

be difficult for an employer to justify its actions where, as

here, consistent medical advice from both the employer’s and

the employee’s physicians counseled against placing the

individual in the job.

It is difficrlt to believe that Congress intended the ADA to

discourage the development and use of safety standards in the

workplace. The Ninth Circuit’s ruling that employers cannot

establish safety as a qualification standard achieves just such

a result.

As Judge Trott said in his dissenting opinion, “the

majority’s holding leads to absurd results.” Pet. App. 23a.

To the extent that it could force employers to place

individuals with disabilities in positions they cannot perform

safely, the results could be more than just absurd—they could

be tragic.

24

CONCLUSION

For the foregoing reasons, the amici curiae Equal

Employment Advisory Council and National Association of

Manufacturers respectfully submit that the decision below

should be reversed.

Respectfully submitted,

JAN S. AMUNDSON ANN ELIZABETH REESMAN

General Counsel Counsel of Record

QUENTIN RIEGEL MCGUINESS, NORRIS &

Deputy General Counsel WILLIAMS, LLP

NATIONAL ASSOCIATION OF 1015 Fifteenth Street, N.W.

MANUFACTURERS Suite 1200

1331 Pennsylvania Avenue, N.W. Washington, D.C. 20005

Washington, D.C. 20004 (202) 789-8600

(202) 637-3000

Attorneys for Amicus Curiae Attorneys for Amicus Curiae

National Association of Equal Employment Advisory

Manufacturers Council