# Amicus Curiae Brief — Chevron USA Inc. v. Echazabal > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385014_0454%3A15 ## Record - **Collection:** Supreme Court brief - **Document type:** Amicus Curiae Brief - **Published:** January 1, 2002 - **Citation:** 536 U.S. 73 ## Text 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 “ 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 --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385014_0454%3A15. Public record. Not legal advice.