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

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URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385014_0454%3A14

## Record

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

## Text

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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385014_0454%3A14. Public record. Not legal advice.