Amicus Curiae Brief — Chevron USA Inc. v. Echazabal

i

No. 00-1406 0 | DEC 26 2001

¥n the Supreme Court of the United Sta

} FILED

|

RD

“RECEIVED CHEVRON U.S.A., INC.,

Petitioner,

jan 03 2002

MARIO ECHAZABAL,

LwC Respondent.

On Writ of Certiorari to the

United States Court of Appeals

for the Ninth Circuit

BRIEF OF THE CHAMBER OF COMMERCE

OF THE UNITED STATES, THE CALIFORNIA

CHAMBER OF COMMERCE, AND THE

ASSOCIATION OF WASHINGTON BUSINESS

AS AMICI CURIAE IN SUPPORT OF PETITIONER

STEPHEN A. BOKAT

ROBIN S. CONRAD

JOSHUA A. ULMAN

National Chamber

Litigation Center, Inc.

1615 H Street, N.W.

Washington, D.C. 20062

(202) 463-5337

MELLANI R. HUGHES

Association of Washington

Business

1414 South Cherry Street

P.O. Box 658

Olympia, WA 98507

(360) 943-1600

Roy T. ENGLERT, JR.

Counsel of Record

KATHRYN S. ZECCA

Robbins, Russell, Englert

Orseck & Untereiner LLP

1801 K Street, N.W.

Suite 41]

Washington, D.C. 20006

(202) 775-4503

FRED MAIN

California Chamber of

Commerce

1215 K Street, Suite 1400

Sacramento, CA 95814

(916) 444-6670

. re oie

TABLE OF CONTENTS

Page

TABLE OF AUTHORITIES ........ iowa cokes on

INTEREST OF THE AMICI] CURIAE .............. ree

INTRODUCTION AND SUMMARY OF ARGUMENT . 3

ARGUMENT ..........2. (aint bs en chased ieeees eens 7

I AN INDIVIDUAL WHO WILL SERIOUSLY

ENDANGER HIS OWN HEALTH BY

PERFORMING ESSENTIAL JOB FUNCTIONS IS

NOT A “QUALIFIED INDIVIDUAL WITH A

DISABILITY”.......... pe enehes ose¥eoes jones F

A. To Be Qualified For A Job Entails More Than

Being Able To Perform Its Physical Tasks ...... 7

B. Under The EEOC Regulations Implementing the

Rehabilitation Act, Which Apply With Equal

Force to the ADA, Respondent Is Not Qualified. 10

C. The Rehabilitation Act Regulations Are Entitled

IN 4 b.0'db6dpcS onda cnesekcadenwne 16

Il. EVEN WITHOUT REGARD TO REHABILITATION

ACT REGULATIONS, AN INDIVIDUAL WHOSE

HEALTH IS ENDANGERED BY PERFORMING

THE JOB IN QUESTION IS NOT QUALIFIED

CONCLUSION .......... pha roupsetneesees onset

TABLE OF AUTHORITIES

Page(s)

Cases

Adkins v. Children’s Hospital, 261 U.S. 525 (1923) ..... 23

Albertsons, Inc. v. Kirkingburg,

CE EhiNse Ww bdedccoce ccs 15, 18, 28

Bowen v. Georgetown Univ. Hosp.,

Ee a 17

Boys Market, Inc. v. Retail Clerks Union,

Local 770, 398 U.S. 235 (1970) ......... 2.00505. 18

Bragdon v. Abbott, 524 U.S. 624 (1998) . 5,7, 12, 13, 16, 17

Burkey v. Reno, 1996 WL 28646 (E.E.0.C. Jan. 19, 1996) 12

CFTC v. Schor, 467 U.S. 833 (1986) ................ 26

Chapman v. United States,

Er ee re eee 26-27

Chevron U. S. A. Inc. v. Natural Resources

Defense Council, Inc., 467 U. S. 837 (1984) .... 17,21

Chiari v. City of League City,

920 F.2d 311 (Sth Cir. 1991) ............. 12, 16, 23

Chickasaw Nation v. United States,

Ee Oe Gk PEED Nobe dénwkeccoadicecs 14-15, 27

Circuit City Stores, Inc. v. Adams,

ee ee ED ds Ga cecasans Cevnebetucsess 27

D'Amico v. City of New York,

B32 P36 145 (26 Cie, 199G) 2... ccc ccccccccess 16

TABLE OF AUTHORITIES—Continued

Page(s)

Digital Equipment Corp. v.

Desktop Direct, Inc., 511 U.S. 863 (1994) ........ 18

Doe v. New York University,

666 F.2d 761 (2d Cir. 1981) ........ 2... ee ee eee 13

Dothard v. Rawlinson, 433 U.S. 321 (1977) ......... 22-23

EE. Black, Ltd. v. Marshall,

497 F. Supp. 1088 (D. Haw. 1980) ............... 13

EEOC v. Amego, Inc.,

110 F.3d 135 (1st Cir. 1997)... 2.2... eee eee, passim

EEOC v. Exxon Corp.,

203 F.3d 871 (Sth Cir. 2000) ........ 0... cece 22

Geier v. American Honda Motor

Co., Inc., 529 U.S. 861 (2000) ..... 2.2.6.0. ee eee, 25

International Union v. Johnson Controls, Inc.,

EEE no chucdeedensscuancenssces 24

J.E.M. Ag Supply Inc. v. Pioneer Hi-Bred

International, Inc., 70 U.S.L.W. 4032

SA Cs REED “<n neces cbdtsccccbcticcecs 27

Jacques v. Clean-Up Group, Inc.,

96 F.3d 506 (Ist Cir. 1996) .... 2... 6 eee cece 15

Knapp v. Northwestern University,

101 F.3d 473 (7th Cir. 1996) ...........6545. 12, 16

Koshinski v. Decatur Foundry, Inc.,

i 177 F.3d 599 (7th Cir. 1999) .... 2.2... eee eee 10

Po oe i A SSS SSS SSS

ee se O_o

IV

TABLE OF AUTHORITIES—Continued

Page(s)

Mantolete v. Bolger, 767 F.2d 1416,

PE GED ctwhadnaddties dhabeeteesc, 13, 14, 16

Milkucki v. United States Postal Service,

1986 WL 10516 (D. Mass. Sept. 22, 1986) ........ 13

Morton v. Mancari, 417 U.S. 535 (1974) ............. i8

National Railroad Passenger Corp. v.

Morgan, No. 00-1614 (to be argued Jan. 9, 2002) ... 22

Prewitt v. United States Postal Service,

GES FS Be Ce Ce BRED occ ccc ccccccccsccs 16

Ruckelshaus v. Monsanto Co.,

Se ee ET Son ccacdcuieabesdeh venkat 18

School Board of Nassau County v. Arline,

Ce PED cobctueasudabddcevcestects 15

Skidmore v. Swift & Co.,

BP GE v0dscctcnecnwuss sabenceunt 17

Southeastern Community College v. Davis,

ee thas cet dbtin be edbenieecede 8

Sutton v. United Air Lines, Inc., 527 U.S. 471 (1999). 21, 22

Texas Department of Community Affairs v.

Burdine, 450 U.S. 248 (1981)... 2... 2.2.2... e eee 26

United States v. Mead Corp., 121 S. Ct. 2164(2001) .... 17

United States v. Monsanto, 491 U.S. 600 (1989) ....... 27

v

TABLE OF AUTHORITIES— ontinued

Page(s)

Watson v. Fort Worth Bank & Trust,

SET EEE eo adavccececectocccececond 26

West Coast Hotel Co. v. Parrish,

SP UEEED. ocecbdsccsneccsvccedccvcecs 23

West Virginia Univ. Hospitals, Inc. v.

Casey, 499 U.S. 83 (1991) .... 2.6.22 ee eee eee 20

Whirlpool Corp. v. Marshall, 445 U.S. 1 (1980) ..... 19, 20

Statutes and Regulations

Gs Oe EE onc ed cccceescevcesecseccscses 13

29 C-F.R. § 1614.203(aN6) ....... 2... eee eee eee, 4,12

Ga BI ow ccc cc ccccnccccccccceccces: 13

ST ID cece ccccccescccccccsocceccens 8

ED. ccc cccctccscuscecsecccccoes 8

29 C.F.R. § 1630.2(r) ............ bb din chines sdseae 17

ENE » c occccncecedveccoweescoeencss 26

29 C.F.R. § 1630.15(b) ............----.. hepéeaees 26

29 C-F.R. § 1977.12(6M(2) ... ..... eee eee eee 5, 20, 24

, , § 8S eer imebatbierese os 18-19

NS sen maindesneccene c's Ge «. Nevibeheowe 19

vi

TABLE OF AUTHORITIES—C ontinued

Page(s)

ED wccencecedicktodadveiisethuaccen 2

LIED 5. id couse pueden naeeeaanele 19

I I. i ches ccuccdedancbauwsane 19

ED cy a cbccceankcidentudelioasisane 4

ED, s cocac ave sestbceniechichdebiecsens 11

RR EE 9 i descvcndaneh cdedec<kbiac aus 4,11

OND « diccccocccécnsssduuceubvebusaki 10

ING. ons coi oneueiakanaan 4,11

PI ctewideccébinkssiasasaspaeruns 27

pI EER RU od eR or ae 2,11

GI CD 0.6 dds cctesietiens Ee se 16

42 U.S.C. § 12111(8) ............ is dtbematies 2,4, 7,8

42 U.S.C. § 12112(a) ..... ence eeeseees 3,47, 00,14,26

42 U.S.C. § 12112(0MS5(A)........ Viidiiieonatinw

42 U.S.C. § 12112(0M6) . 0... 5 eee eee ee. (dst 26

42 U.S.C. § 12113(a) ....... Utd iliattla 26

42 U.S.C. § 121130) ..... haunt tlaeada i 25

ABUBL, OMI oo cn eccsevecs ae 4,11

vii

TABLE OF AUTHORITIES—C ontinued

Page(s)

Miscellaneous

43 Fed. Reg. 12295 (Mar. 24, 1978) ................. 13

i ea sbedsbuvetcaeséboceesoess 24

57 Fed. Reg. 12634 (Apr. 10, 1992) .............. 13,17

Denise W. DeFranco, Chevron and Canons

of Statutory Construction,

58 GEO. WASH. L. REV. 829(1990) .............. 21

H.R. Rep. No. 101-485 (II) (May 15, 1990),

reprinted in 1990 U.S.C.C.A.N. 303 ............. 11

H.R. Rep. No. 101-485(III) (May 15, 1990),

reprinted in 1990 U.S.C.C.A.N. 445. ............. 20

OSHA, Standards of Interpretation and Guidance,

Employment of Individuals with Disabilities

(Aug. 27, 1997), at www.osha-sic.gov/

OshDoc/Interp-data/119970827. html ............. 19

INTEREST OF THE AMICI CURIAE'

The Chamber of Commerce of-the United States of

America is the world’s largest federation of business companies

and associations, with an underlying membership of more than

three million businesses and professional organizations of every

size, in every industry sector, and every region of the country.

An important function of the U.S. Chamber is to represent the

interests of its members in court by filing amicus curiae briefs

in cases involving issues of concern to American business.

The California Chamber of Commerce is a voluntary, non-

profit, California-wide business association with more than

12,000 members, both individual and corporate, who represent

virtually every economic interest in the state. Ninety percent of

the California Chamber’s members are small or medium-sized

businesses that it represents before the Legislature, local

governing bodies, and the courts on a broad range of issues

The Association of Washington Business (“AWB”) has a

membership consisting of businesses large and small, urban and

rural, and from ali parts of the state. AWB is the oldest and

most influential business organization in the state, and serves as

Washington’s chamber of commerce. Of 3,700 members, 75

percent are businesses with fewer than 50 employees. AWB’s

membership also includes some of the nation’s largest and most

influential companies. AWB serves as the principal voice of the

business community. An important function of AWB is to

represent the interests of its members by filing amicus briefs in

cases presenting issues of statewide concern to businesses.

Many members of the U.S. Chamber, the California

Chamber, and AWB are employers subject to Title I of the

‘ Pursuant to Rule 37.3 of the Rules of this Court, the parties have

consented to the filing of this brief. The parties’ letters of consent

have been lodged with the Clerk of the Court. Counsel! for amici

curiae wrote this brief in its entirety. No person or entity, other than

the amici curiae, their members, or their counsel, has made a

monetary contribution to the preparation or submission of this brief.

2

Americans with Disabilities Act (ADA), 42 U.S.C. § 12101 et

seq., and other employment statutes and regulations. As

employers, and as potential respondents to ADA charges,

amici’s members have a direct interest in the Court’s

determination whether an employer may, consistent with the

ADA, refuse to hire an individual with a disability when the

individual is unable to perform the essential functions of the job

without posing a substantia! risk to his own health or safety.

As employers, amici’s members are also required to

comply with the Occupational Safety and Health Act (the “OSH

Act”), 29 U.S.C. § 651 et seqg.. Under that act, they have a

general duty to maintain a work environment free of hazards

that may cause death or serious physical harm to their employ-

ees. Amici’s members therefore also have a substantial interest

in the determination whether their duties under the OSH Act

must give way to the Ninth Circuit’s interpretation of the ADA.

Like many employers, many of amici’s members prepare

job descriptions specifying the duties associated with a particu-

lar job, the skills required to perform the job, and the education-

al and other job-related requisites for the job. Under the ADA,

in determining whether a person is a “qualified” for a particular

job, consideration should be given to an employer’s written

description of a job and to the employer’s judgment as to what

job functions are essential. 42 U.S.C. § 12111(8). Here,

Chevron has prepared a written description of the requirements

of the job at its coker unit, a description that “incorporated the

need for an employee to be able to tolerate an environment” that

included toxins and chemicals (Pet. App. 15a), but the majority

opinion rejected that definition in favor of its own belief as to

what constituted the essential functions of the job. Jbid.

Amici’s members have a strong interest in understanding the

extent of their potential liability under the ADA for adhering to

their own pre-existing decisions regarding the requirements for

their job positions.

Additionally, many of amici’s members employ physi-

cians. Among their duties, which generally involve mainte-

3

nance of the health and safety of the workforce, these company

physicians provide medical advice and guidance as to whether

or not a particular individual can perform a particular job. Here,

Chevron’s doctors (in consultation with respondent’s personal

physician) concluded that respondent’s disability rendered him

unable to perform the job he sought without seriously en-

dangering his health. Chevron relied on this advice to withdraw

respondent’s conditional job offer. Amici’s members therefore

also have a direct interest in ensuring that they can rely on the

professional medical opinion of their physicians in determining

whether a job applicant is qualified.

Accordingly, amici have both an interest in, and

familiarity with, the issues presented to the Court in this case.

Because of their significant experience in these matters, amici

are well situated to brief this Court on the importance of the

issues beyond the immediate concerns of the parties to this case.

INTRODUCTION AND SUMMARY OF ARGUMENT

The Ninth Circuit majority concluded that threat to self

is completely irrelevant under the ADA. Petitioner Chevron

contends (as did Judge Trott in dissent) that threat to self is rele-

vant to both whether an individual is “qualified” within the

meaning of the ADA and the so-called “direct threat defense.”

The Solicitor General’s position, as expressed in his amicus

brief filed at the Court’s invitation, is that petitioner is right

about the latter contention but not necessarily the former.

Amici believe that Chevron and Judge Trott are right

about both positions. Because the merits briefs of petitioner and

the Solicitor General (as well as other amici supporting peti-

tioner) will fully address the “direct threat defense” issue, amici

will not. Rather, this brief demonstrates that threat to self must

be taken into account in deciding who is a “qualified individual

with a disability.” 42 U.S.C. § 12112(a).

L. The ADA prohibits discrimination only against

those individuals with a disability who are otherwise qualified

to perform the essential functions of the job. 42 U.S.C.

4

§ 12112(a). An individual whose performance of essential job

functions will seriously endanger his own health is not a “quali-

fied” individual with a disability. /bid.

A. Neither the text of the ADA, nor the regulations

implementing the ADA, expressly permit or forbid considera-

tion of the health risks to the employee (or others) in deter-

mining whether a job applicant is “qualified.” The reasonable

reading of the statute, however, is that a person who cannot per-

form a job without posing a substantial risk to his health is not

qualified to do that job, especially if the employer’s written job

description, which must receive consideration under the statute

(42 U.S.C. § 12111(8)), makes safe performance an essential

function of the job.

B. The Rehabilitation Act definition of “qualified”

carries over to the ADA. In both the ADA (42 U.S.C.

§ 12201(a)) and the 1992 amendments to the Rehabilitation Act

(29 U.S.C. §§ 791(g), 794(d)), Congress explicitly stated that

the same standards are to be applied under the two Acts. As

Judge Lynch’s opinion for a unanimous panel of the First Cir-

cuit concluded in EEOC v. Amego, Inc., 110 F.3d 135, 144 (1st

Cir. 1997), so construing the statutes compels the conclusion

that a substantial health risk resulting from an individual’s per-

formance of a job renders that individual not “qualified” under

the ADA.

The regulations under the Rehabilitation Act, 29 U.S.C.

§ 701 et seq., explicitly address this issue. They provide that a

“qualified individual” is one who “can perform the essential

functions of the position in question without endangering the

health and safety of the individual or others * * *.” 29 C.F.R.

§ 1614.203(a)(6) (emphasis added). The regulation is consistent

with EEOC adjudications under the Rehabilitation Act, as well

as case law under the Rehabilitation Act. The Rehabilitation

Act regulation should be followed, and the plaintiff should bear

the burden of proving that he or she can perform the job safely

as part of the showing that the plaintiff is a “qualified individual

with a disability.”

5

c. The Rehabilitation Act regulation is entitled to

deference. This Court so held in Bragdon v. Abbott, 524 U.S.

624, 638-39 (1998), relying on the Rehabilitation Act’s defini-

tion of “handicapped individual” to interpret the term “disabili-

ty” under the ADA. The regulation deserves substantially more

deference than the EEOC’s litigating position with regard to the

ADA: the EEOC argues that the health of the individual is lim-

ited to the applicability of the “direct threat defense,” and has no

relevance to the determination whether the individual is cuali-

fied. The First Circuit properly rejected that position in Amego

and instead relied on the Rehabilitation Act regulation. 110

F.3d at 142, 144.

iL. Even without regard to Rehabilitation Act regula-

tions, the only appropriate construction of the term “qualified”

is one that takes into account the risk to an employee’s health.

A. The ADA should be read as part of the total

corpus of federal employment law. An integral part of this body

of legislation is the OSH Act, which requires the protection of

employee health and safety and the prevention of employee

injury. The OSH Act’s policies and mandates (it should go

without saying) apply to the employment of disabled persons.

An individual is not “qualified” for employment, then, if his

employment would vitiate the goals of the OSH Act. Time and

again, this Court has instructed the lower federal courts to read

the entire United States Code as a harmonious whole. Even in

the absence of a specific OSH Act regulation governing respon-

dent’s precise situation, a construction of the ADA that need-

lessly creates the very kind of danger to employees that the

OSH Act seeks to avoid creates a sharp tension in federal law.

That tension can and should be avoided by construing the ADA

to take account of whether a particular position would endanger

an employee as part of the inquiry whether he or she is “quali-

fied” for the position. Furthermore, there is an OSH Act regula-

tion that would permit respondent, if hired, to refuse to perform

his job on the ground that it would endanger him, and would

protect him from retaliation. 29 C.F.R. § 1977.12(b)(2). There

6

is no reason why the ADA should be construed to command

petitioner to hire respondent for a job he could then lawfully

refuse to perform.

B. Contrary to the majority opinion below (Pet.

App. 9a-10a), such a construction of the statute is not “pater-

nalistic” in any legally consequential sense. Reference to Title

VII precedents to arrive at such a conclusion is inappropriate,

given that issues involving an employee’s health and safety are

better resolved by reference to the federal statute — the OSH

Act — that addresses this very issue. The OSH Act itself is

“paternalistic” in a sense, but the function of a court construing

the intent of Congress is to distinguish those respects in which

Congress wished to act paternalistically from those in which it

did m4. It takes little imagination to realize that Congress

wished to protect employees from workplace hazards.

G It is possible to construe the requirement that the

employee be “qualified” and the availability of a “direct threat”

defense to the employer so that each takes account of the threat

the employee might pose to himself or herself, yet they are not

redundant. The “not onerous” burden generally imposed on em-

ployment discrimination plaintiffs, for example, could be

applied to the threshold inquiry, with a more searching inquiry

applied at the defense stage. The more persuasive analysis,

however, recognizes that it simply does not matter if the two

provisions are redundant. The ADA, undeniably, is filled with

such redundancies. The presumption that Congress does not

write redundant provisions — powerful but not irrebuttable in

most cases, and demonstrably fictional in this case — should not

be allowed to overcome the strong indications that Congress did

wish safety to be taken into account at the stage of determining

whether the plaintiff is a “qualified individual.”

7

ARGUMENT

I. AN INDIVIDUAL WHO WILL SERIOUSLY EN-

DANGER HIS OWN HEALTH BY PERFORMING

ESSENTIAL JOB FUNCTIONS IS NOT A“QUAL-

IFIED INDIVIDUAL WITH A DISABILITY”

_ The Ninth Circuit concluded that being “qualified” for

a job must mean only being able to perform its physical tasks.

But nothing in the ADA’s definition of “qualified individual

with a disability” compelled that conclusion, and other sections

of the ADA, which the Ninth Circuit had no warrant to disre-

gard, suggest that it was perfectly proper for petitioner to define

the qualifications for respondent’s job more broadly. Rehabili-

tation Act regulations, which should apply with equal force tc

ADA cases, also make it clear that being “qualified” includes

not endangering one’s own health or safety or that of others.

The Ninth Circuit likewise had no warrant to disregard those

regulations. Indeed, under Bragdon v. Abbott, they were en-

titled to some level of deference. Because neither the ADA’s

text and structure nor any ADA regulation contradicts those

Rehabilitation Act regulations, they should be dispositive.

A. To Be Qualified For A Job Entails More

Than Being Able To Perform Its Physical

Tasks

The ADA prohibits discrimination against any “qualified

individual with a disability.” 42 U.S.C. § 12112(a). A

“qualified individual with a disability” is “[a]n individual with

a disability who, with-or without reasonable accommiodation,

can perform the essential functions of the employment position

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

Is a person “qualified” — “can” he or she “perform the essential

functions” of a job — if doing so will result in serious injury or

death to that person? As a purely linguistic matter, without re-

sort to any of the other sources that inform statutory inter-

pretation, the section surely could be read either way. “I can’t

do X because I would hurt myself if I did,” and “I can do X, but

I would hurt myself if I did,” are equally natural English usages.

The EEOC regulations interpreting the ADA state

simply that “[q]ualified individual with a disability means an

individual with a disability who satisfies the requisite skill,

experience, education, and other job-related requirements of the

employment position such individual holds or desires, and who,

with or without reasonable accommodation, can perform the

essential functions of such position.” 29 C.F.R. § 1630.2(m).

The regulation is no less ambiguous than the statutory language

itself.

Other sections of the ADA, however, do shed significant

light on the issue. The ADA requires that courts give con-

sideration to an employer’s judgment as to what is required to

perform the job in question. 42 U.S.C. § 12111(8) (“consid-

eration shall be given to the employer’s judgment as to what

functions of the job are essential”); see also 29 C.F.R.

§ 1630.2(n)(3) (“[e]vidence of whether a particular function is

essential includes * * * (ii) [written job descriptions prepared

before advertising or interviewing applicants for the job”). And

under the Rehabilitation Act this Court has accorded deference

to the decisions of federal agencies regarding the criteria that

must be met for a plaintiff to be considered “qualified.” See

Southeastern Community College v. Davis, 442 U.S. 397, 406

(1979) (deferring to Department of Health, Education, and Wel-

fare regulation defining a “qualified handicapped person” with

regard to education services). As the First Circuit has stated,

“({w]here the plaintiff has presented no evidence of discrim-

inatory intent, animus, or even pretext, we think there should be

special sensitivity to the danger of the court becoming a super-

employment committee.” EEOC v. Amego, Inc., 110 F.3d at

145.

Chevron prepared a written description of the job for

which respondent applied (as well as every other position at the

refinery). Pet. App. 36a-37a. The descriptions listed not only

the tasks involved in performing the job, but also the specific

9

chemicals, solvents, and liquids to which an employee would be

exposed. /bid. The job description, therefore, made clear that

the employee must “be able to tolerate an environment

including, among other things, hydrocarbon liquids and vapors,

petroleum, solvents and oils.” Pet. App. 15a (emphasis added).

The doctors who evaluated respondent’s condition relied on that

job description in determining that performance of the job

would endanger respondent’s health. Pet. App. 36a-39a.

Nonetheless, the majority below discarded Chevron’s

description, substituting its own definition of essential job

functions. Judge Reinhardt’s opinion for the inajority held that

those functions comprised only the physical aspects of the job

and that respondent was capable of performing those functions.

Pet. App. 15a-16a. In reaching thai conclusion, the majority

simply gave no weight to the consideration that respondent’s

performance of those tasks would seriously endanger respon-

dent’s health, and possibly cause him to die.’ Substituting

epithet for analysis, the majority described that concern as “a

paternalistic risk-to-self defense in circumstances in which an

employee’s disability does not prevent him from performing the

requisite work.” /d. at 16a.

The majority’s reasoning is absurd. Certainly, if expo-

sure to toxins in the workplace would cause respondent to pass

out or suffer seizures while at work, all would agree that re-

spondent is unable to perform the essential functions of the job.

But, because exposure to those toxins does not prevent respon-

dent from surviving the workday, and, instead will “only” seri-

2 ‘We assume for purposes of this amicus brief, as did the panel

majority below for purposes of its decision, that the threat to

respondent’s health is severe. Although respondent has disputed that

proposition in his brief in opposition in this Court, petitioner and per-

haps other amici will address that issue; we will not address it in this

brief. For reasons stated in the amicus brief the U.S. Chamber joined

in the Ninth Circuit, the U.S. Chamber disagrees with respondent’s

position on that issue.

10

ously injure him at a later date, under the majority’s view, re-

spondent can do the job. The better view is aptly stated in Judge

Trott’s dissent: “[T]he job most probably will endanger his life.

I do not understand how we can claim he can perform the essen-

tial functions of the position he seeks when precisely because of

his disability, those functions may kill him.” Jd. at 21a.

The dubious logic of the majority below was appropri-

ately rejected by the Seventh Circuit in Koshinski v. Decatur

Foundry, Inc., 177 F.3d 599 (7th Cir. 1999). In that case, the

medical testimony established that, although the plaintiff could

currently perform the tasks associated with his job as a cupola

operator, plaintiff's degenerative wrist disease would eventu-

ally cause him to “wear out” and no longer be able to perform

heavy labor. /d. at 601. The Seventh Circuit concluded that the

plaintiff was not qualified: “[Plaintiff] may have shown that he

wanted to return to work despite the risk of pain and harm, but

that is not the test. He had to show that he was qualified to do

the job.” Jd. at 603.

The Seventh Circuit’s reasoning is correct, especially as

applied to a case in which the employer included tolerance to

specific chemicals in its written job description. It certainly

does not contradict the language of the ADA to conclude that

being “qualified” for a position entails more than the ability to

perform the physical tasks associated with that position.

B. Under The EEOC Regulations Implementing

the Rehabilitation Act, Which Apply With

Equal Force to the ADA, Respondent Is Not

Qualified

1. Section 504 of the Rehabilitation Act and the

ADA both prohibit discrimination against qualified individuals

with a disability. Compare 29 U.S.C. § 794(a) (“[n]o otherwise

qualified individual with a disability * * * shall * * * be

subjected to discrimination”) with 42 U.S.C. § 12112(a) (“[njo

covered entity shall discriminate against a qualified individual

with a disability * * *”’).

11

The definition of “qualified individual” under the

Rehabilitation Act regulations applies with equal force to the

ADA. Congress has expressly stated that the ADA and the Re-

habilitation Act are to be read together. In enacting the ADA,

Congress provided that “nothing in this chapter shall be con-

strued to apply a lesser standard than the standards applied

under title V of the Rehabilitation Act of 1973 (29 U.S.C. § 790

et seq.) or the regulations issued by Federal agencies pursuant

to such title.” 42 U.S.C. § 12201(a). The ADA’s legislative

history states more specifically that the definition of “qualified

individual with a disability” “is comparable to the definition

used in regulations implementing section 501 and section 504

of the Rehabilitation Act of 1973.” H.R. Rep. No. 101-485 (I),

*55 (May 15, 1990), reprinted in 1990 U.S.C.C.A.N. 303.

In the 1992 amendments to the Rehabilitation Act, Con-

gress reaffirmed that the standards under the two statutes are the

same, mandating that the standards to be used in determining

whether the Act has been violated “shall be the standards

applied in title I of the Americans with Disabilities Act.” 29

U.S.C. §§ 791(g) (employment by federal entities), 794(d)

(employment by programs or activities receiving federal

assistance).

In a case in which an explicit command of the ADA

contradicted prior interpretations of the Rehabilitation Act, and

perhaps even in a case in which an ADA regulation entitled to

Chevron deference contradicted prior interpretations of the Re-

habilitation Act, these statutory provisions would likely require

that the Rehabilitation Act interpretation be conformed to the

ADA, not the other way around. In a case in which the Rehab-

ilitation Act provides a definitive answer, however, and the

ADA’s language and regulations do nothing to contradict that

answer, surely there is no warrant for a court to depart from

settled interpretation of the Rehabilitation Act. Rather, Con-

gress’s intent that the two statutes be interpreted identically

leads logically to the conclusion that settled Rehabilitation Act

precedents and regulations should be applied to cases under the

12

ADA except in cases of palpable conflict. And in fact the Court

has done just that. See Bragdon v. Abbott, 524 U.S. at 631, 638-

639, 645.

2. Although the EEOC regulations under the ADA

defining “qualified individual with a disability” do not explicitly

address the impact of a threat to an individual’s health, the

to the issue: “Qualified individual with handicaps means with

respect to employment, an individual with handicaps who, with

or without reasonable accommodation, can perform the essential

functions of the position in question without endangering the

health and safety of the individual or others * * *.” 29 C.F.R.

§ 1614.203(a)(6) (emphasis added). In other words, under the

Rehabilitation Act, if an individual will endanger his or her own

health or safety in the course of performing the essential func-

tions of a job, the individual is not qualified.

The EEOC has adhered to this definition of “qualified

individual” in its adjudications. In Burkey v. Reno, 1996 WL

28646 (E.E.0.C. Jan. 19, 1996), the EEOC determined that the

Rehabilitation Act did not prohibit the removal of a correctional

officer from her position on the ground that her disability —

severe, chronic asthma — placed her at a substantial risk of

contracting tuberculosis or and other infectious diseases.

Cases interpreting the Rehabilitation Act uniformly use

the same definition of “qualified individual.” In Knapp v.

Northwestern University, 101 F.3d 473 (7th Cir. 1996), for

example, the Seventh Circuit held that a college student was not

“qualified” to play intercollegiate basketball because the

student’s heart condition made it probable that he would suffer

a fatal heart attack if he played on the defendant university’s

basketball team. /d. at 482-483; see also id. at 483 (“A signifi-

cant risk of personal physical injury can disqualify a person

from a position if the risk cannot be eliminated.”’). Similarly, in

Chiari v. City of League City, 920 F.2d 311, 317 (Sth Cir.

1991), the Fifth Circuit concluded that a construction inspector

13

was not qualified for his position because the effects of

Parkinson’s disease posed a risk that he would injure himself.

Courts that considered the issue before the enactment of

the ADA are in accord. See Mantolete v. Bolger, 767 F.2d

1416, 1422-24 (9th Cir. 1985) (job applicant would not be

qualified if she were unable to perform the essential functions

of the job without a probability of substantial injury to herself);

Doe v. New York University, 666 F.2d 761, 777 (2d Cir. 1981)

(applicant for admission to medical school would not be quali-

fied if there were a “risk that her mental disturbances will recur,

resulting in behavior harmful to herself and others”); Milkucki

v. United States Postal Service, 1986 WL 10516, *7 (D. Mass.

Sept. 22, 1986) (applicant for a position as a mail handler would

not be qualified if there were a reasonable probability that her

scoliosis would cause her substantial harm); E.E£. Black, Ltd. v.

Marshall, 497 F. Supp. 1088, 1103 n.16 (D. Haw. 1980) (recog-

nizing that in some instances the risk of injury to an employee

renders the employee not qualified for a particular job).

3. Both at the time the ADA was enacted, and currently,

the Rehabilitation Act regulations’ definition of “qualified indi-

vidual” has provided that an individual is not qualified if he can-

not perform the essential functions of the job without endan-

gering himself.’ And numerous courts had stated, before the

ADA was enacted, that an individual whose handicap posed a

risk that the person would seriously injure himself while per-

forming the functions of a job was not qualified for that job.

See Doe, 666 F.2d at 777; Milkucki, 1986 WL 10516, at *7;

E.E. Black, Ltd., 497 F. Supp. at 1103 n.16. “Congress” repeti-

tion of a well-established term carries the implication that Con-

gress intended the term to be construed in accordance with pre-

existing regulatory interpretations.” Bragdon, 524 U.S. at 631.

> The regulation was originally codified at 29 C.F.R. § 1614.702. See

43 Fed. Reg. 12295 (Mar. 24, 1978). This provision was redesignated

as 29 C.F.R. § 1614.203 in 1992. See 57 Fed. Reg. 12634 (Apr. 10,

1992).

14

Accordingly, when Congress stated that the ADA was to

be read in conjunction with the Rehabilitation Act, Congress

intended that the EEOC’s (and the courts’) interpretation of the

Rehabilitation Act apply to the ADA. See Amego, 110 F.3d at

144 (in a case brought under the ADA, acknowledging that

EEOC regulations under the ADA defining “qualified indi-

vidual” do not address risk posed to others, and relying on Re-

habilitation Act regulations to take that factor into account in

determining whether the plaintiff was qualified).

The Ninth Circuit’s opinion, however, simply ignores

the congressional mandate that the ADA be read in conjunction

with the Rehabilitation Act. The majority conceded that, under

the Rehabilitation Act regulations, a disabled person is not

“qualified” ifhis disability poses a reasonable possibility of sub-

stantial harm to him. Pet. App. 16a-17a n.10 (citing Mantolete,

1422-24). Nonetheless, the majority asserted that the

“Rehabilitation Act regulation [] is irrelevant to our inquiry”

(ibid. ) because, according to the majority, the ADA’s definition

of “qualified individual” speaks directly to the issue. As peti-

tioner will explain in its merits brief and as the Solicitor General

convincingly showed in his petition-stage amicus brief (at 12-

13), only the most blatant misuse of the expressio unius prin-

ciple could lead to the conclusion that the ADA reflects an ex-

plicit congressional intent to require that threats to oneself be

disregarded.* See also Chickasaw Nation v. United States, 122

* Amici agree with the Solicitor General to the extent that he shows

that the decision below is indefensible and that threat to self must be

taken into account at /east as a defense available to the employer. But

amici disagree, for the reasons stated in this brief, with the Solicitor

General to the extent that he asserts that the EEOC’s regulations under

the ADA “appropriately place the burden of proof on employers”

because they “analyz[e] employer concerns about threat to self as a

defense (rather than part of the employee’s prima facie demonstration

that he or she is ‘qualified’ under 42 U.S.C. 12112(a)).” U.S. Br. 16

(Sept. 26, 2001). Just as is true under the Rehabilitation Act, threat to

self should be considered as part of both the showing the employee

15

S. Ct. 528, 532 (2001) (explaining that “to ‘include’” something

in a statute is not necessarily to exclude everything else given

the ordinary meaning of the word). In the absence of any reli-

able indication in the text of the ADA, or even its implementing

regulations, that threats to oneself are to be disregarded, the

Rehabilitation Act regulations should be controlling.

+ As is the case in every action brought under the

Rehabilitation Act, the plaintiff bears the burden of establishing

that he is “qualified” for the job in question, including that he

will not endanger the health of himself or others. See Amego,

110 F.3d at 142 (“It is generally accepted that * * * the plaintiff

bears the burden of showing she is a ‘qualified’ individual.”’)

(quoting Jacques v. Clean-Up Group, Inc., 96 F.3d 506, 511

(1st Cir. 1996)). In School Board of Nassau County v. Arline,

480 U.S. 273 (1987), a case brought under the Rehabilitation

Act, the Court considered whether it was appropriate to dismiss

a school teacher who was susceptible to tuberculosis on the

ground that the contagious disease could endanger the health of

others. Remanding the case to the trial court, the Court held that

it was appropriate to consider, as part of whether the plaintiff

was “otherwise qualified,” the potential of harm to third parties.

Id. at 287-88 (emphasis added). In other words, the Court indi-

cated that the question whether a plaintiff would endanger the

health of others (the issue of endangering one’s own health was

not at issue in that case) was part of plaintiff's prima facie

burden, not part of the employer’s “direct threat” defense. See

also Albertsons, Inc. v. Kirkingburg, 527 U.S. 555, 578 (1999)

(Thomas, J., concurring) (“Presumably, then, a plaintiff claim-

ing a cause of action under the ADA bears the burden of

proving, inter alia, that he is a qualified individual.”).

Specifically, in numerous cases in which the risk to an

employece’s own health was at issue, the courts have confirmed

that it is the plaintiff's burden to establish that he is “qualified.”

For example, in Amego, the First Circuit held that summary

must make that he or she is “qualified” and the employer’s defenses.

16

judgment for the employer was appropriate because plaintiff

“did not meet her burden of demonstrating that she is qualified.”

110 F.3d at 144. And in Chiari, the Fifth Circuit stated that

“(t]o qualify for relief under this statute [the Rehabilitation Act],

Chiari must prove that * * * he is ‘otherwise qualified’ to be a

construction inspector.” 920 F.2d at 315. Other circuits are in

accord. See D'Amico v City of New York, 132 F.3d 145, 149

(2d Cir. 1998) (“The plaintiff bears the ultimate burden of

proving by a preponderance of the evidence that he is qualified

for the position despite his disability.”); Knapp, 101 F.3d at 478

(“[t]o prevail on his claim for discrimination under the [Rehab-

ilitation}] Act, Knapp must prove that * * * he is otherwise

qualified for the position sought”); Mantolete, 767 F.2d at 1423

(“the plaintiff bears the burden in the first instance of showing

she is qualified to perform the essential functions of the job’’)

(citing Prewitt v. United States Postal Service, 662 F.2d 292,

308 (Sth Cir. 1981)).

It is certainly true that, in many cases, it may be the em-

ployer who first articulates the reason why an employee may not

be qualified for a position. See, e.g., Amego, 110 F.3d at 141

(employer argued that plaintiff was not qualified because of

diagnosed depression), Chiari, 920 F.2d at 315-16 (defendant

justified not hiring plaintiff because performance of job would

endanger his safety). Nonetheless, whichever party first raises

the issue, it remains the plaintiff's burden under the Rehabilita-

tion Act to prove that he is can perform the essential functions

of the job without endangering the health or safety of himself or

others.

Cc, The Rehabilitation Act Regulations Are

Entitled to Deference

1. In Bragdon v. Abbott, 524 U.S. at 638-639, this

Court relied on the Rehabilitation Act regulations to determine

what is and is not a “major life activity” under the ADA. See 42

U.S.C. § 12102(2)(A) (defining a disability as “a physical or

mental impairment that substantially limits one or more of the

major life activities of such individual”). In according def-

17

erence to the Rehabilitation Act regulations, the Court noted (id.

at 642) that “[rjesponsibility for administering the Rehabilita-

tion Act was not delegated to a single agency, but we need not

pause to inquire whether this causes us to withhold deference to

agency interpretations under Chevron U. S. A. Inc. v. Natural

Resources Defense Council, Inc., 467 U. S. 837, 844 (1984).”

Instead, the Court observed, “{i]t is enough to observe that the

well-reasoned views of the agencies implementing a statute

‘constitute a body of experience and informed judgment to

which courts and litigants may properly resort for guidance.”

Ibid. (quoting Skidmore v. Swift & Co., 323 U.S. 134, 139-140

(1944)). Similarly, here, the regulations defining “qualified

individual with handicaps” are entitled to deference.

Not all EEOC pronouncements, however, are entitled to

deference. Notably, the EEOC has taken the litigating position

in this case and others that the health and safety of an individual

are properly considered only with regard to the “direct threat de-

fense” (see 29 C.F.R. § 1630.2(r)), and are not relevant to whe-

ther an individual is qualified. E.g., Amego, 110 F.3d at 142-

144. But litigating positions taken by agencies are not accorded

the same deference as regulations implemented after notice and

comment, as were the Rehabilitation Act regulations on which

we rely. See 57 Fed. Reg. 12634 (Apr. 10, 1992). As this Court

noted in United States v. Mead Corp., 121 S. Ct. 2164, 2177

(200i), not all agency pronouncements are entitled to the same

level of deference. In particular, an “interpretation advanced for

the first time in a litigation brief” receives deference at the

lowest end of the spectrum of judicial responses, “near indif-

ference.” Jd. at 2172 (citing Bowen v. Georgetown Univ. Hosp.,

488 U.S. 204, 212-213 (1988)).

One circuit has expressly rejected the EEOC’s litigating

position on this issue. In EEOC v. Amego, Inc., supra, the

EEOC argued that the issue of the health or safety of others

must be analyzed under the “direct threat” defense, and had no

relevance to the resolution of whether plaintiff was qualified for

the position in question. 110 F.3d at 142. The First Circuit

18

disagreed, ultimately concluding that plaintiff was not qualified

because she posed a direct threat to others. /d. at 144; see also

Albertsons, 527 U.S. at 578-80 (Thomas, J., concurring)

(employee’s failure to meet qualification standards establishes

that the employee is not qualified for the job).

Accordingly, in order to read the ADA and the

Rehabilitation Act together —- as Congress intended — the

Court must follow either the regulation (and judicial

interpretations) under the Rehabilitation Act or the EEOC’s

litigating position vis-a-vis the ADA. The choice is simple; the

regulation that is entitled to deference must trump a litigating

position meriting “near indifference.”

Il. EVEN WITHOUT REGARD TO REHABILI-

TATION ACT REGULATIONS, AN INDIVIDUAL

WHOSE HEALTH IS ENDANGERED BY

PERFORMING THE JOB IN QUESTION IS NOT

QUALIFIED UNDER THE ADA

A. The ADA cannot be read in a vacuum. As we

have explained, the ADA and the Rehabilitation Act are to be

construed alike. But the Rehabilitation Act is not the only

statute to be considered in interpreting the ADA; to the contrary,

the ADA should be read in the context of the total body of

federal employment law, particularly “longstanding laws

mandating workplace safety.” Pet. App. 22a.

It is a “familiar principle of statutory construction that,

when possible, courts should construe statutes * * * to foster

harmony with other statutory and constitutional law.” Digital

Equipment Corp. v. Desktop Direct, Inc., 511 U.S. 863, 879

(1994); accord Ruckelshaus v. Monsanto Co., 467 U.S. 986,

1018 (1984); Morton v. Mancari, 417 U.S. 535, 551 (1974).

“Statutory interpretation requires, more than concentration on

isolated words; rather, considerstion must be given to the total

corpus of pertinent law * * *.” Boys Market, Inc. v. Retail

Clerks Union, Local 770, 398 U.S. 235, 250 (1970)

(harmonizing provision of Norris-LaGuardia Act, 29 U.S.C.

19

§ 104, and provision of Labor Management Relations Act, 29

U.S.C. § 185(a)).

The core policies underlying the OSH Act are the pro-

tection of employee health and safety and the prevention of in-

jury: “The Congress finds that personal injuries and illnesses

arising out of work situations impose a substantial burden upon,

and are a hindrance to, interstate commerce in terms of lost pro-

duction, wage loss, medical expenses, and disability compensa-

tion payments.” 29 U.S.C. § 651(a). The OSH Act’s general

duty clause therefore imposes a duty on every employer to “fur-

nish to each of his employees employment and a place of em-

ployment which are free from recognized hazards that are caus-

ing or likely to cause death or serious physical harm to his em-

ployees.” 29 U.S.C. § 654(a)(1) (emphasis added). “[T]his

provision * * * was intended itself to deter the occurrence of

occupational deaths and serious injuries by placing on employ-

ers a mandatory obligation independent of the specific health

and safety standards to be promulgated by the Secretary [of

Labor].” Whirlpool Corp. v. Marshall, 445 U.S. 1, 13 (1980).

The OSH Act’s mandates are not to be simply cast aside

when it comes to the employment of disabled persons. The U.S.

Department of Labor, the agency charged with administering

the OSH Act, has implemented interepretive guidance describ-

ing how the OSH Act and the ADA are to work together.

OSHA, Standards of Interpretation and Guidance, Employment

of Individuals with Disabilities (Aug. 27, 1997), at www.osha-

slc.gov/OshDoc/Interp_data/I19970827.html. Significantly, this

guidance recognizes that an employer may take into account the

risk to the employee associated with the performance of a job:

“{I]f an employee can perform their [sic] job functions in a

manner which does not pose a safety hazard to themselves |sic]}

or others, the fact that they [sic] have a disability is irrelevant

***” (Emphasis added.)

What is more, under the OSH Act, respondent could

have refused to perform the job at the coker unit on the ground

20

that performance of the job would endanger his health. The

OSH Act regulations provide that:

[O]ccasions might arise when an employee is confronted

with a choice between not performing assigned tasks or

subjecting himself to serious injury or death arising

from a hazardous condition at the workplace. If the em-

ployee, with no reasonable alternative, refuses in good

faith to expose himself to the dangerous condition, he

would be protected against subsequent discrimination.

29 C.F.R. § 1977.12(b)(2).° This Court unanimously upheld

Section 1977.12(b)(2) in Whirlpool Corp. v. Marshall, supra.

Accordingly, if the decision below is correct, petitioner

must hire respondent, despite the interplay between his disabili-

ty and hazardous chemicals, under the ADA, but then respon-

dent could refuse to do the job, because of the interplay between

his disability and hazardous chemicals, under the OSH Act.

This is nonsensical, and the majority erred in producing such an

illogical result: “[I}t our role to make sense rather than nonsense

out of the corpus juris.” West Virginia Univ. Hospitals, Inc. v.

Casey, 499 U.S. 83, 101 (1991). See also ibid. (“Where a

statutory term presented to us for the first time is ambiguous,

we construe it to contain that permissible meaning which fits

most logically and comfortably into the body of both previously

and subsequently enacted law.”).

* The result should be the same under the ADA. “[{IIf a person is

employed as a painter and is assigned to work with a unique paint

which caused severe allergies, such as skin rashes or seizures, the per-

son would be substantially limited in a major life activity, by virtue of

the resulting skin disease or seizure disorder. * * * In such a case, a

reasonable accommodation to the employee may include assignment

to other areas where the particular paint is not used.” H.R. Rep. No.

—— *29 (May 15, 1990), reprinted in 1990 U.S.C.C.A.N.

21

When the ADA is read in conjunction with the OSH Act,

then, any possible ambiguity in the ADA’s statutory text dis-

appears. An individual cannot be “qualified” for a job if per-

forming its functions would vitiate the very policies underlying

the OSH Act. And an individual cannot be qualified for a job

under the ADA that he could refuse to accept or to perform

under the OSH Act.

For this reason, we disagree with the Solicitor General’s

suggestion that “Congress has not ‘directly spoken to the precise

question’ whether an employer may require a prospective em-

ployee be able to perform the job he seeks without posing a

threat to his own health or safety.” U.S. Br. 11 (Sept. 26, 2001)

(quoting Chevron, 467 U.S. at 842). The conclusion that a

statute is ambiguous and that Chevron deference applies can be

reached only after, not before, traditional tools of statutory

interpretation are applied to determine whether Congress’s

intent is clear. Chevron, 467 U.S. at 843 n.9; see generally

Denise W. DeFranco, Chevron and Canons of Statutory

Construction, 58 GEO. WASH. L. REV. 829 (1990). In this

instance, the incompatibility the Ninth Circuit’s ruling would

create between the ADA and the OSH Act forecloses any con-

clusion that the ADA is sufficiently ambiguous to permit the

Ninth Circuit’s interpretation. Chevron deference is unneces-

sary to decide this case.

As it happens, applying Chevron deference in this case

would also result in reversal of the decision below, because the

EEOC regulation directly on point favors petitioner. See U.S.

Br. 14-16 (Sept. 26, 2001). And, as we argued in Part I, the

relevant EEOC regulation under the Rehabilitation Act also

favors petitioner, and does so on the precise ground amici urge,

so that deference would produce what amici believe to be the

appropriate result here. Because the government or others often

urge deference to EEOC pronouncements that amici believe to

be inconsistent with the proper interpretation of the statute,°

* E.g., Sutton v. United Air Lines, Inc., 527 U.S. 471 (1999)

22

however, it is important that the Court not jump too readily to

the conclusion that the ADA is ambiguous and means whatever

the EEOC says it means.

B. Because petitioner’s refusal to hire respondent is

entirely consistent with the policies underlying the OSH Act

(policies that are nowhere disavowed in the ADA), the majority

was wrong in concluding that petitioner’s actions were “pater-

nalistic” in any legally consequential sense (Pet. App. 9a-10a).

Certainly, the ADA does not sanction employment decisions

based on stereotypical notions regarding whether an individual’s

condition “‘might,’ ‘could,’ or “would’” affect him if he were to

perform the functions of a job. Sutton v. United Air Lines, Inc.,

527 U.S. 471, 482 (1999). But the ADA condones precisely the

type of “individualized inquiry” (id. at 483) undertaken in this

case; that is, an analysis of the impact of the particular job appli-

cant’s disability on the functions of the specific job in question.

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

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

the Court rejected an Alabama regulation setting height and

weight restrictions for correctional officers, which had the effect

(EEOC Interpretive Guidance under the ADA); EEOC v. Exxon

Corp., 203 F.3d 871 (Sth Cir. 2000) (EEOC Interpretive Guidance

under the ADA); National Railroad Passenger Corp. v. Morgan,

No. 00-1614 (to be argued Jan. 9, 2002) (EEOC regulations under

Title VII). There are grounds other than incompatibility with the

statute for rejecting deference in each of the cited cases: in Sutton and

Exxon, Interpretive Guidance rather than a regulation was at issue, and

in Morgan the regulation for which the respondent seeks deference is

inapplicable to the private sector. Nevertheless, in each case either the

EEOC or a private party claimed or is claiming that the EEOC’s pro-

nouncement should receive Chevron deference. Sutton is particularly

instructive, because the Court assumed for purposes of its decision

that full Chevron deference might apply, yet still rejected the EEOC’s

interpretation as incompatible with the ADA, applying tools of

statutory construction rather than merely parsing the single section at

issue to see whether its bare words were ambiguous.

23

of discriminating against women, noting that a “refus[al] to hire

an individual woman or man” may not be “on the basis of

stereotyped characterizations of the sexes.” 433 U.S. at 333

(emphasis added). That is not a concern here, where “the threat

of injury to the [disabled] person is not based on unfounded

fears or stereotypes,” but instead is “veritable.” Chiari, 920

F.2d at 317 (employer’s judgment that there was a substantial

risk that plaintiff would injure himself established that plaintiff

was not qualified).’ And, in Dothard, the Court let stand the

regulation prohibiting women from working as correctional

officers in high-security all-male prisons. In so doing, the Court

emphasized that it would be an “oversimplification to

characterize [the regulation at issue] as an exercise in romantic

paternalism.” 433 U.S. at 335. So too, in the case of an

employee who poses a substantial risk to his own health, is it an

“oversimplification” to describe the employer’s decision as

“paternalism.”*

’ In Chiari, the Fifth Circuit rejected the plaintiff's argument,

explicitly based on Dothard, that he “should be free to make his own

choices regarding his personal safety.” 920 F.2d at 316-17. In so

doing, the court questioned whether Title VII precedents were

relevant to interpreting the Rehabilitation Act. /d. at 316 & n.5.

* To be sure, all worker-protective legislation, and all worker-

protective interpretations of legislation, are “paternalistic” in some

sense. But, even though “paternalistic” legislation is often controver-

sial, the Court recognized long ago that it does not have a roving com-

mission to strike down all such legislation because it conflicts with the

freedom of contract. Compare Adkins v. Children’s Hospital, 261

U.S. 525 (1923) (holding minimum-wage law unconstitutional), with

West Coast Hotel Co. v. Parrish, 300 U.S. 379 (1937) (overruling Ad-

kins). “Paternalism” comes in many varieties, and the task of a court

interpreting a statute is to distinguish the paternalism that Congress

approved from the paternalism that Congress condemned, not to use

“paternalistic” as an epithet to condemn a result without analyzing it.

In the present case, the OSH Act forcefully shows that Congress re-

mains “paternalistically” concerned about protecting workers from

workplace hazards, and the ADA does not even remotely suggest that

24

Nor is the Ninth Circuit majority’s reliance on /nterna-

tional Union v. Johnson Controls, Inc., 499 U.S. 187 (1991),

any more persuasive. There, the employer prohibited all women

— but not men — of child-bearing age from employment in

jobs exposing them to lead, even though that exposure to lead

also has a “debilitating effect * * * on the male reproductive

system.” /d. at 198. By treating similarly situated men and

women differently, the employer’s policy ran contrary to the

central purpose of Title VII to “prohibit{] sex-based classifica-

tions * * * in hiring and discharge decisions * * *.” Jd. at 197

(citing 42 U.S.C. § 2000e-2(a)). Here, Chevron has not treated

respondent differently from similarly situated persons without

disabilities; persons without respondent’s disability do not pose

a substantial risk to their own health by performing the job in

question. Moreover, in Johnson Controls, OSHA had conclud-

ed that “there is no basis whatsoever’” to exclude women of

child-bearing age from jobs involving lead exposure. /d. at 208

(quoting 43 Fed. Reg. 52592, 52966 (1978)). In this case, on

the other hand, the OSH Act would permit respondent to refuse

to perform the job in question because it would endanger his

health. 29 C.F.R. § 1977.12(b)(2).

In short, if Chevron’s decision not to hire respondent

was impermissibly “paternalistic,” then so is the OSH Act.

Only by misconstruing this Court’s precedents under a less

relevant statute — Title VII — could the Ninth Circuit majority

reach the result it did.’

Congress wished to condemn individualized judgments about whether

particular workers are especially susceptible to workplace hazards.

* The incompatibility between the OSH Act and the Ninth Cir-

cuit’s interpretation of the ADA is unavoidable, given that it cannot

be seriously maintained that the ADA repeals any relevant part of the

OSH Act by implication, and is a powerful reason to reject the Ninth

Circuit’s construction of the ADA. Petitioner’s fear (Pet. 26) of state

tort law stands on a slightly different footing. We agree completely

with petitioner that, unless state law is unambiguously preempted by

————

25

C. Perhaps the most forceful objection to our analy-

sis is that it arguably renders 42 U.S.C. § 12113(b) superfluous.

According to that section, “qualification standards” (whose

application may give rise to an affirmative defense if they are

job related and consistent with business necessity) “may include

a requirement that an individual shall not pose a direct threat to

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

Why, one might ask rhetorically, would Congress bother to say

— even as an example — that “direct threat” can be a defense if

the same direct threat will always be relevant at an earlier stage

of the analysis, when the employee must show that he or she is

a “qualified individual with a disability”?

There are many answers. One is that the showing re-

quired of the employee at the threshold may be a weaker one

than the showing required ultimately to prevail over the em-

ployer’s affirmative defense. Courts frequently describe the

plaintiff's initial burden under employment discrimination

the ADA, the Ninth Circuit’s interpretation would cause employers to

be attacked from both sides - sued under the ADA when they protect

disabled workers and sued or even prosecuted under state law when

they fail to do so. We further agree with petitioner that that the pro-

cess of litigating preemption issues would be both burdensome and

uncertain if this Court affirmed the Ninth Circuit without including in

its opinion a powerful statement about the need for state law protect-

ing disabled workers to be preempted in cases in which the ADA im-

pels employers to ignore worker safety. The problem could be solved,

however, by a powerful statement from this Court — which, unlike the

Ninth Circuit’s casual (and perhaps insincere) reassurance, Pet.

App. 13a, would bind all lower courts — recognizing the preemptive

implications of its decision. See Geier v. American Honda Motor

Co., Inc., 529 U.S. 861, 884-85 (2000) (“[O}ne can assume that Con-

gress or an agency would not intend to permit a significant conflict”

although we strongly urge reversal of the decision below, we place

less reliance than does petitioner on state law as a reason to reverse.

In the unlikely event that this Court affirms the decision below, it

should address preemption fully in its decision.

26

statute as “not onerous,””’° and perhaps the same analysis should

be applied in this case to avoid a redundancy.

The more persuasive analysis in our estimation, how-

ever, does not labor to avoid a redundancy between the “quali-

fied individual” showing and the “direct threat” defense, but

rather frankly recognizes that the ADA is a statute full of

redundancies.'' When Congress has written a statute in a way

that makes it obviously fictional to engage in the ordinary

presumption that it does not write redundant provisions, and

when there are powerful indications that Congress intended a

factor be taken into account under each of two statutory

provisions, the anti-redundancy canon is not a sufficient reason

to disregard those indications. See CFTC v. Schor, 467 U.S.

833, 841 (1986) (a “canon of construction does not give a court

the prerogative to ignore legislative will”); Chapman v. United

'° Watson v. Fort Worth Bank & Trust, 487 U.S. 977, 986 (1988);

Texas Department of Community Affairs v. Burdine, 450 U.S. 248,

253 (1981).

"For example, the ADA excludes from the definition of

“discrimination” the application of qualification standards, tests, or

selection criteria that are job related and consistent with business

necessity. 42 U.S.C. § 12112(b)(6); see also 29 C.F.R. § 1630.10.

But the employer may also assert, as a defense to a charge of

discrimination, that its qualification standards, tests, or selection

criteria are job related and consistent with business necessity. 42

U.S.C. § 12113(a); see also 29 C.F.R. § 1630.15(b). Similarly, it is

discrimination not to make a reasonable accommodation to the known

physical or mental limitations of an otherwise qualified disabled

person (42 U.S.C. § 12112(6)(5)(A)), and being qualified is of course

the bedrock showing every individual must make at the threshold (id.

§ 12112(a)), but it is also an affirmative defense that the individual

could not perform the job even with accommodation (id. § 12113(a)).

Undeniably, Congress’s drafting technique in this statute — whatever

may be presumed about its drafting techniques in other statutes — was

to hammer its points home by repetition rather than to avoid

redundancies.

——

27

States, 500 U.S. 453, 464 (1991) (although a canon “is useful in

close cases,” “it is ‘not a license for the judiciary to rewrite

language enacted by the legislature.”” (quoting United States v.

Monsanto, 491 U.S. 600, 611 (1989)).

Twice already this Term the Court has decided cases in

which one party’s best argument was that the other party’s

construction of a statute would render some of its provisions, or

the provisions of another statute, superfluous or redundant. In

Chickasaw Nation v. United States, 122 S. Ct. at 532, the Court

“agree[d] with the Tribes that rejecting their argument reduce[d]

[a particular statutory phrase] to surplusage” but rejected the

argument anyway because it could “find no other reasonable

reading of the statute.” The Court further explained that

“canons are not mandatory rules” but merely “guides that ‘need

not be conclusive.”” Jd. at 535 (quoting Circuit City Stores,

Inc. v. Adams, 532 U.S. 105, 115 (2001)). “{O}ther

circumstances evidencing congressional intent can overcome

their force.” Ibid. In J.E.M. Ag Supply Inc. v. Pioneer Hi-Bred

International, Inc., 70 U.S.L.W. 4032 (U.S. Dec. 10, 2001), the

petitioners argued that the Plant Variety Protection Act of 1970

would have been unnecessary if the general patent statute, 35

U.S.C. § 101, already protected sexually reproduced plants. The

Court rejected that argument for a number of reasons, among

them that “(t]he PVPA itself * * * contains no statement that

plant variety certificates were to be the exclusive means of

protecting sexually reproduced plants.” 70 U.S.L.W. at 4037;

see also id. at 4038 (“this Court has not hesitated to give effect

to two statutes that overlap, so long as each reaches some

distinct cases”). The dissent read the intent of Congress

differently but was, if anything, even more emphatic in its

insistence that canons merely aid the search for legislative

intent. Jd. at 4042 (Breyer, J., dissenting) (“Those who write

statutes seek to solve human problems. Fidelity to their aims

requires us to approach an interpretive problem not as if it were

a purely logical game, like a Rubik’s Cube, but an effort to

divine human intent that underlies the statute.”). For the various

reasons we have given, nothing about the non-superfluity canon

28

is forceful enough to overcome the many indications — including

the Rehabilitation Act regulations and the policies of the OSH

Act — that Congress intended threat to self to be considered as

part of the determination whether a plaintiff is a “qualified _

individual.”

In his concurrence in Albertsons, Justice Thomas recog-

nized that the same issue could be relevant to both the deter-

mination whether an individual was “qualified,” and the deter-

‘mination whether the employer’s “qualification standards” were

job related and consistent with business necessity. 527 U.S. at

578-580; see also id. at 580 (“I would prefer to hold that respon-

dent, as a matter of law, was not qualified to perform the job he

sought within the meaning of the ADA.”). The First Circuit has

reached the same conclusion. See Amego, 110 F.3d at 143

(“[W]e discern no congressional intent to preclude the

consideration of essential job functions that implicate the safety

of others as part of the ‘qualifications’ analysis.”). Such is the

case here. The fact that respondent cannot perform the job he

seeks without endangering his health renders him “not

qualified.” It also is the basis for the permissible “qualification

standard” that the employee not pose a direct threat to himself

or others.

CONCLUSION

For the foregoing reasons, the judgment of the Ninth

Circuit should be reversed.

29

Respectfully submitted.

STEPHEN A. BOKAT Roy T. ENGLERT, JR.

ROBIN S. CONRAD Counsel of Record

JOSHUA A. ULMAN KATHRYN S. ZECCA

National Chamber Robbins, Russell, Englert

Litigation Center, Inc. Orseck & Untereiner LLP

1615 H Street, N.W. 1801 K Street, N.W.

Washington, D.C. 20062 Suite 411

(202) 463-5337 Washington, D.C. 20006

(202) 775-4503

MELLANI R. HUGHES

Association of Washington FRED MAIN

Business California Chamber of

1414 South Cherry Street Commerce

P.O. Box 658 1215 K Street, Suite 1400

Olympia, WA 98507 Sacramento, CA 95814

(360) 943-1600 (916) 444-6670

Counsel for Amici Curiae

DECEMBER 2001