Amicus Curiae Brief — Chevron USA Inc. v. Echazabal

JAN 30 2002

No. 00-1406

_ —— eo oe - -

IN THE

Supreme Court of the United States

CHEVRON U.S.A. INC.,

Petitioner,

v.

MARIO ECHAZABAL,

Respondent.

On Writ oF CERTIORARI TO THE

Unitep STATES Court OF APPEALS FOR THE NINTH CIRCUIT

BRIEF OF THE NATIONAL COUNCIL ON

DISABILITY AS AMICUS CURIAE IN

SUPPORT OF RESPONDENT

PETER BLANCK* DIANE KUTZKO

Professor and Director Mark L. ZAIGER

LEONARD A. SANDLER DouG as R. OELSCHLAEGER

Clinical Professor SARAH J. GAYER

and Co-Director SHUTTLEWORTH & INGERSOLL, P.L.C.

UNIVERSITY OF lowa COLLEGE 500 Firstar Bank Bldg.

oF Law, AND Law, HEALTH POLicy P.O. Box 2107

AND DisaBILiTy CENTER Cedar Rapids, [A 52406

431 Boyd Law Bldg. (319) 365-946T Fy

University of lowa RECEIVE

lowa City, LA 52242-1113 FER ~ 4 2002

(319) 335-9043

OFFILE Ob THE CLERK

* Counsel of Record SUPREME COURT, U S.

Counsel for Amicus Curiae

TABLE OF CONTENTS

Table of Cited Authorities .....................

Interest of Amicus Curiae ............000 cc eues

Statement of the Case ...............ccceeeees

Summary of the Argument ................005.

I. Title I Of The ADA Is Designed

To

Secure Civil Rights For Persons

With Disabilities Based On Their Abilities

And Without Regard To Myths And

Misconceptions About Their Employment

ED. Wack cdeeeccceeveaetsesaves

A.

The ADA Marked A Watershed In Civil

Rights For Persons With Disabilities And

The Abandonment Of The Medical

Model Of Disability ...............

The Text And Legislative History Of The

ADA Demonstrate That Eliminating

Paternalism Was An Overriding Purpose

PEED Sn dSdisbedeawsacéangeses

Congress Viewed The Exclusion Of

Individuals With Disabilities Who Pose

Only A Direct Threat To Themselves As

An Impermissible Act Of Paternalism ..

11

14

ii

Contents

Page

II. Incorporating “Direct Threat” Into The

Definition Of “Qualified Individual” Would

Undercut The Structural Integrity And

Purposes Of The Act ................... 17

Il. The EEOC’s Regulations Concerning Direct

Threat To Self Are Not Entitled To Chevron

ES Oe a aren 23

BS a ene a ret ee 25

iil

TABLE OF CITED AUTHORITIES

Page

Cases:

Adarand Constructors, Inc. v. Pena, 515 U.S. 200

DT cokuedhewénnensepesetcveseceoscoess 11

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

ditt a eh edereddededknsesedessseeess 7

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

Council, Inc., 467 U.S. 837 (1984) ........... 23, 24

Dothard v. Rawlinson, 433 U.S. 321 (1977) ...... 16

Duncan v. Walker, 121 S. Ct.2120(2001) ....... 22

E.E.O.C. v. United Parcel Services, Inc., 149 F. Supp.

Sl PE, SEED cotcccccccccceccces 21

EEOC v. Wafflehouse, Inc., No. 99-1823 (S. Ct. Jan.

SED vc cuoedeceesedsctescoscccacveces 20, 23

Fox v. Standard Oil Co., 294 U.S. 87 (1935) ..... 19

Frontiero v. Richardson, 411 U.S. 677 (1973) .... 11

International Union v. Johnson Controls, Inc., +39

SE IED weccc ccs cccccesescesoccaees 16

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

PEE DUE Se vcccccevesccccccecesccess 22

Montclair v. Ramsdeil, 107 U.S. 147 (1883) ...... 23

iv

Cited Authorities

Page

Olmstead v. L.C., 527 U.S. 581 (1999) .......... 14

Solid Waste Agency of Northern Cook County v.

United States Army Corps of Engineers, 531 U.S.

SD nikatdevestricduenbceedal Fine we 23

Sutton v. United Airlines, 527 U.S. 471 (1999) .... l

TRW Inc. v. Andrews, 122 S. Ct. 441 (2001) ...... 22

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

Pe MEY bain oden<snswesadekdhietenode 22

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

suesecandecedeebéceoakestusbesebanesitne 24

United States v. Menasche, 348 U.S. 528 (1955) ..22, 23

United States v. Shimer, 367 U.S. 374 (1961) ..... 24

Wards Cove Packing Co. v. Atonio, 490 U.S. 642

EE 9:4 ddcndnantesbudants Gunesbeneceals 21

Statutes:

SPEDE UEE icentbdvavovicssscuceedaniours |

42 U.S.C. § 2000e-2(k)(1 Ai) . 2.2.2.0... ee. 21

Gee © ee NU, ch cccecdcdecdcddncocas l

Cp Ges OF ED ovnccncudubautobtedive 10

DOGG. SMI ......... . cccccdsisdeucets: 10

ms

v

Cited Authorities

Page

42 U.S.C. § 12101(a)(5) .....--- eee eee eee 10, 16, 24

42 U.S.C. § 12101(a)(7) ....---- ee eee eee eee 10

42 U.S.C. § 12101(a)(9) ....--- cece eee eee eee 5, 11

42 U.S.C. § 12111(3) .. 2... eee ee eee ee ee eee 6, 23, 24

42 U.S.C. § 12111(8) ....------ ee eee 5, 17, 18, 19, 22

42 U.S.C. § 12112(a) ..... 22. e ee eee eee ee eeees 5,17

42 U.S.C. § 12112(b)(SMA) ..... 6-6 -eee ee eee 19

42 U.S.C. § 12112(b)(6) ......-. eee eee eee 19, 21

42 U.S.C. § 12113(a) ....----- eee wees 5, 19, 20, 21

42 U.S.C. § 12113(B) ...- ee eee eee eee eee 5, 19, 20

Other Authorities:

29 C.F.R. § 1630, App. § 1630(2)(n) (2001) ...... 18, 20

29 C.F.R. § 1630.2(m)(1) (2001) ........ 6. eee eee 18

29 C.F.R. § 1630.2(q) (2001) ......-- 6. cece eee 20

29 C.F.R. § 1630.2(r) (2001) .... 2... cece eee 6

29 C.F.R. § 1630.15(b)(2) (2001) .......-----es 6

vi

Cited Authorities

Page

134 Cong. Rec. $5090-02 (daily ed. April 28, 1988)

s0cbethvccdstousdnts eaudsibueuseneebies 15

135 Cong. Rec. $4979-02 (daily ed. May9, 1989) .. 12

135 Cong. Rec. $10701-04 (daily ed. Sept. 7, 1989)

baceeshéGondnedestédes ta buatedeiualwkecs 15

136 Cong. Rec. E1656-02 (daily ed. May 22, 1990)

hoetencdeudsetnceddbuen kennel udnauitekts 8

136 Cong. Rec. E1913-01 (daily ed. June 13, 1990)

jovesesnecoetathdsedsecuedbanansamiund 15

136 Cong. Rec. H1920-04 (daily ed. May 1, 1990)

ocbbcndannadusbduseed back beesbeauesndlesi 16

136 Cong. Rec. H2421-02 (daily ed. May 17, 1990)

sé wadecddukesded austencenseeeekéeiddutua 16

136 Cong. Rec. H2599-01 (daily ed. May 22, 1990)

rabeie neh aga ndeneneesdneoetenebeteeteus 15

136 Cong. Rec. H4614-02 (daily ed. July 12, 1990)

peduweseddecnheseetetnuauseshesose 11, 13, 15, 16

136 Cong. Rec. $9680-01 (daily ed. July 13, 1990)

vii

Cited Authorities

Page

H.R. Rep. No. 485, reprinted in 1990 U.S.C.C.A.N.

DP 0 ceesisceekene ds 1, 4, 5, 7, 11, 12, 15, 16, 18, 21

H.R. Rep. No. 596 (1990) .............eeeeeees 16

S. Rep. No. 101-116 (1989) ............eceeee. 21

S. Rep. No. 357 (1992), reprinted in 1992

IEEE du dwascdscceccdésncadees 12

Nicholas A. Ashford et al., Monitoring the Worker

for Exposure and Disease 71 (1990) .......... 13

Peter Blanck & Michael Millender, Before Disability

Rights: Civil War Pensions and the Politics of

Disability in America, 52 Ala. L. Rev. 1 (2000) ... 9,10

Peter David Blanck & Glenn Pransky, Workers with

Disabilities, 14 Occupational Medicine: State of

the Art Reviews 581 (1999) ................. 22

Edward J. Calabrese, Pollutants in High-Risk

Groups: the Biological Basis of Increased Human

Susceptibility to Environmental and Occupational

eee 14

Ann Hubbard, Understanding and Implementing the

ADA 's Direct Threat Defense, 95 Nw. U. L. Rev.

EE asin cbtaddaberous<vsieessceses 21

Merriam-Webster ss Collegiate Dictionary 851 (10th

SE Sin dunedudbateSecevedcséncisacec 11

vill

Cited Authorities

Promises To Keep: A Decade of Enforcement of the

Americans with Disabilities Act (2000)

Joseph Shapiro, No Pity: People with Disabilities

Forging a New Civil Rights Movement 41 (1993)

Toward Independence (1986), cited in 135 Cong.

Rec. $10765-01 (daily ed. Sept. 7, 1989)

Webster's Encyclopedic Unabridged Dictionary of

the English Language 1056 (1994)

Page

2,5

l

INTEREST OF AMICUS CURIAE'

The National Council on Disability (NCD), as this Court

has recognized, provided the founding vision and the initial

framework for the Americans with Disabilities Act of 1990,

42 U.S.C. § 12101 et seg. (“ADA” or “the Act”).? For more

than two decades, the NCD has monitored and evaluated the

state of America’s disability-related civil rights laws and policies

through research, town meetings, and intergovernmental

collaboration.

Formerly the National Council on the Handicapped, the

NCD is an independent federal agency composed of 15 members

appointed by the President and confirmed by the Senate. It is

charged by statute with reviewing federal laws, regulations,

programs, and policies affecting people with disabilities. It is

also required by law to make recommendations to the President,

the Congress, and other federal officials and entities regarding

ways to promote equal opportunity, economic self-sufficiency,

inclusion and integration into all aspects of society for Americans

with disabilities. 29 U.S.C. § 781 (1994).

The NCD was instrumental in creating the legislative record

that Congress considered when deliberating the ADA, and it

played a pivotal role in the passage of that landmark civil rights

law. See H.R. Rep. No. 485, pt. 2, at 30-31, 34, reprinted in

1990 U.S.C.C.A.N. 303, 312, 316. Guided and informed by

1. The parties have consented to the filing of this brief. Letters of

consent were lodged with the Clerk of Court on January 22, 2002.

The following brief was not authored, in whole or in part, by counsel

for either party. No person or entity, other than the amicus curiae, its

members and counsel, contributed monetarily to the preparation or

submission of the brief.

2. See Sutton v. United Airlines, 527 U.S. 471, 484-85 (1999);

see also H.R. Rep. No. 485, pt. 2, at 28 (1990), reprinted in 1990

U.S.C.C.A.N. 303, 310.

2

this unique mandate and perspective, the NCD submits this brief

amicus curiae.

The NCD is pledged to support the letter and the spirit of

the ADA and to preserve the integrity and bedrock principles of

the law. * Prominent among these are the equal opportunity and

self-determination of persons with disabilities. Here, this Court

is being asked to allow employers to shut the door on qualified

individuals with disabilities who employers believe might be

harmed by exposure to a workplace environment.

In this case, petitioner Chevron seeks to accomplish that

goal by relying on a “direct threat to self” defense to

discrimination charges created by the Equal Employment

Opportunity Commission (“EEOC”). Such a defense is found

nowhere in the language of the Act, is directly contrary to a

plain and natural reading of the Act, and is inconsistent with

the clearly expressed intent of Congress. The EEOC’s position

gives employers the right to decide the degree of risk an

individual with a disability can and shoyld accept in performing

his or her job. The defense essentially would allow employers

unilaterally to bar or dismiss from jobs qualified workers who

do not pose a health or safety risk to others, but perhaps only to

themselves. Moreover, as in Mr. Echazabal’s case, this

determination is based on speculative and, at best, probabilistic

medical criteria. The result is to endorse the unjustified

paternalism and stereotyping that Congress expressly sought to

eliminate.

3. Consistent with that role, NCD published its report to the

President of the United States and Congress, Toward Independence

(1986), cited in 135 Cong. Rec. $10765-01, $10790 (daily ed. Sept. 7,

1989) (The NCD report “concluded that the major obstacles facing people

with disabilities are not their specific individual disabilities but rather

the artificial barrier imposed by others.”) (Statement of Sen. Dole).

3

STATEMENT OF THE CASE

Mario Echazabal worked at Chevron’s El Segundo,

California oil refinery for some 20 years. During this time,

he worked as a laborer, helper, and pipefitter for various

maintenance contractors, primarily in the coker unit.

Joint Appendix 10 (hereinafter “J.A.”). In 1992 Echazabal

applied to work directly for Chevron at the refinery’s coker unit

as a pipefitter/mechanic. He again applied in 1995 for the

position of plant helper. J.A. 172-73. On both occasions,

Chevron determined that he was qualified for the job and

could perform its essential functions. Chevron extended

Echazabal a job offer contingent on his passing a physical

examination. J.A. 55, 172-73.

After examination and review, Chevron’s physician

concluded that Echazabal should not be exposed to the solvents

and chemicals in the refinery, even though Echazabal’s

own physician stated he had “no limitations.” J.A. 95. Chevron’s

decision was based on a medical assessment of Echazabal’s

chronic liver condition, diagnosed as Hepatitis C. J.A. 96-97.

In 1996, prior to the phone conversation that took place between

Echazabal’s physician, Dr. Weingarten, and Chevron’s

Dr. McGill, and after turning him down for the second time,

Chevron wrote to Irwin Industries, Echazabal’s employer at the

refinery. Chevron demanded that Irwin immediately remove

Echazabal from the refinery or place him in a position that

eliminated his exposure to solvents/chemicals. J.A. 57-58.

This action was taken even though Echazabal’s hepatitis never

caused injury or accident to himself or anyone else at the refinery.

Chevron refused to hire Echazabal and barred him from

working as a plant helper at the refinery. After losing his position

at the refinery, Echazabal filed a complaint with the Equal

Employment Opportunity Commission. He subsequently filed

a complaint in state court (which was removed to federal court)

4

alleging, among other claims, discrimination on the basis of a

disability in violation of the ADA.

The district court granted summary judgment in favor of

Chevron. The Ninth Circuit reversed, holding that the direct

threat defense contained in the ADA does not permit employers

to exclude from employment qualified individuals with

disabilities who pose a risk only to themselves and not others;

and that the risk that Echazabal poses to his own health does

not affect whether he is a qualified individual for purposes of

the Act. Echazabal v. Chevron USA, Inc., 226 F.3d 1063, 1072

(9th Cir. 2000). This Court granted Chevron’s petition for

certiorari.

SUMMARY OF THE ARGUMENT

Encountering risk is an element of everyday life experience.

Assessing and accepting risk are basic elements of personal

independence and the exercise of adult responsibility. Congress

understood that and acknowledged in the ADA that

discrimination takes many forms, including paternalism and

stereotyping. See H.R. Rep. 485, pt. 2, at 74 (1990), reprinted

in 1990 U.S.C.C.A.N. 303, 356. Perhaps the most long-standing

and insidious aspect of this type of discrimination is the

assumption that people with disabilities are not competent to

make informed, wise, or safe life choices. This myth is most

apparent and damaging in the employment context.

In its 1986 report to the President and the Congress, upon

which Congress relied in its consideration and passage of the

ADA, NCD recognized the importance of access to employment

as key to the independence of individuals with disabilities:

As for most other Americans, a major prerequisite

to economic self-sufficiency for individuals with

disabilities is a job. Employment is an essential

5

key to successful adult integration into community

life. Various forms of work are associated with

greater independence, productivity, social status,

and financial security. Success and quality of life

are often measured in terms of paid employment.

See National Council on the Handicapped, Toward

Independence 18-21 (1986).

In part in response to these concerns, Congress passed the

ADA and set forth findings about the pervasive nature of

discrimination against persons with disabilities. These findings

included discrimination resulting from over-protective rules and

policies, as well as intentional discrimination that relegated

individuals with disabilities to lesser and inferior jobs and

foreclosed their employment opportunities. H.R. Rep. No. 485,

pt. 2, at 28-29 (1990), reprinted in 1990 U.S.C.C.A.N. 303,

310-11. The resultant loss to this nation in economic productivity

was estimated to be in the billions of dollars. 42 U.S.C.

§ 12101(a)(9).

Consistent with Congress’s findings, Title I of the ADA

prohibits discrimination against a “qualified individual with a

disability” on the basis of myths, stereotypes, and misperceptions

about job capabilities. 42 U.S.C. § 12112(a). The ADA defines

a “qualified individual with a disability” as a person with a

disability “who, with or without reasonable accommodation,

can perform the essential functions” of the job. 42 U.S.C.

§ 12111(8).

Title I permits certain employer defenses based on

qualification standards that are “job-related” and “consistent

with business necessity.” 42 U.S.C. § 12113(a). Those defenses

include the requirement that an employee not pose a “direct

threat to the health or safety of other individuals in the

workplace.” 42 U.S.C. § 12113(b). “Direct threat” is defined as

6

“a significant risk to the health or safety of others that

cannot be eliminated by reasonable accommodation.” 42 U.S.C.

§ 12111(3). Nowhere in the Act is “direct threat” defined or

referred to as a risk to self. In fact, there is not a single reference

in the Act or the legislative history denoting that a threat to the

disabled employee himself is a defense for the employer to refuse

to hire the employee.

Nevertheless, the EEOC issued regulations that expanded

the definition and defense of “direct threat” beyond the explicit

language of the ADA. The EEOC regulations define direct threat

to mean “a significant risk of substantial harm to the health or

safety of the individual or others that cannot be eliminated or

reduced by reasonable accommodation.” 29 C.F.R. § 1630.2(r)

(2001) (emphasis added). Moreover, the regulations provide

that “[t]he term ‘qualification standard’ may include a

requirement that an individual shall not pose a direct threat to

the health or safety of the individual or others in the workplace.”

29 C.F.R. § 1630.15(b)(2) (2001).

The EEOC’s interpretation is fundamentally inconsistent

with the text and purpose of the statute. Congress could easily

have used the phrase “direct threat to the health or safety of the

individual or other individuals in the workplace,” but it did not.

That omission cannot be viewed as an oversight, given the

fundamental importance of this phrasing in accomplishing the

goals of the statute.

The EEOC’s strained interpretation of the direct threat

defense to include risk to self undermines the ADA’s primary

principle. Congress recognized that employer assessment of the

risk to the employee historically served as a reason for the

unwarranted exclusion — well meaning or otherwise — of

qualified individuals from work. The Act was drafted to leave

the assessment of personal risk to the employee in consultation

with his or her treating physician. The employer was prohibited

= Se ee

7

from considering the effect on health or safety, unless and until

the individual’s condition or behavior imperils the health or

safety of others in the workplace, or the individual fails to meet

specific health or safety standards imposed by federal authorities.

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

Congress treated the effect of federal standards differently

because they were more likely to be general standards applicable

to all individuals and, therefore, not based on a paternalistic

protection of disabled persons. On the other hand, in the context

of private employers’ evaluations, Congress recognized that such

considerations are a form of paternalism that can pose

insurmountable barriers to employment. See H.R. Rep. No. 485,

pt. 2, at 74 (1990), reprinted in 1990 U.S.C.C.A.N. 303, 356.

Mario Echazabal dramatically exemplifies the situation the

ADA was intended to prevent and the harm that results from

the application of the EEOC’s expanded notion of direct threat.

Echazabal successfully performed the essential functions of

various jobs in Chevron’s refinery coker unit for some twenty

years without accident or injury to himself or anybody else.

Echazabal was capable of making independent and

informed decisions about his employment and medical

treatment. Record evidence establishes that Echazabal continued.

to work in the coker unit at the refinery with full knowledge of

his medical condition and of the chemicals and solvents to which

he was exposed, and he did so in consultation with his treating

physicians. Chevron was fully apprised and aware of Echazabal’s

health status during these years, through the repeated

appointments and evaluations conducted at the Chevron refinery

clinic while Echazabal continued to work amidst the hepatoxins.

Chevron is attempting to use the EEOC’s rule to override

Echazabal’s personal decision to continue his day-to-day job

activities, because the company, rather than the employee,

believes that any exposure to liver toxic chemicals is

unacceptable to it. J.A. 32. This action is contrary to the language

and intent of the Act.

The Act is carefully calibrated to balance the interests of

employers and individuals with disabilities, and it requires that

issues be addressed in an ordered and tiered sequence.

The threshold determination is whether an individual is qualified

to perform the job, with or without reasonable accommodations.

Then and only then can the defense of direct threat to others be

evaluated.

Congress chose to draft the definition of “direct threat”

narrowly. Where Congress has spoken clearly, as here, the natural

and direct meaning of the Act controls over any interpretation

placed on it by an administrative agency. The EEOC regulations

extending the direct threat defense to individuals who pose a

substantial health or safety risk to themselves accordingly are

not entitled to Chevron deference. For these reasons, the Ninth

Circuit’s decision should be affirmed.

ARGUMENT

I. TITLE I OF THE ADA IS DESIGNED TO

SECURE CIVIL RIGHTS FOR PERSONS

WITH DISABILITIES BASED ON THEIR

ABILITIES AND WITHOUT REGARD TO MYTHS

AND MISCONCEPTIONS ABOUT THEIR EM-

PLOYMENT CAPABILITIES

A. The ADA Marked A Watershed In Civil Rights For

Persons With Disabilities And The Abandonment Of

The Medical Model Of Disability

By enacting the ADA, Congress committed the federal

government to the protection of the civil rights of individuals

with disabilities, and abandoned a prior focus on social programs

that tended to isolate those individuals. 136 Cong. Rec. E1656-

02, E1656 (daily ed. May 22, 1990) (“I agree with the National

Council on Disability in its belief that the provisions of this

9

legislation send persons with disabilities a clear message that

their dream of equal civil rights protections will soon become a

reality”) (Statement of Rep. Gingrich).

The ADA’s civil rights model was founded on the principle

that individuals with disabilities are a minority group entitled

to the same hard-won legal protections as African-Americans

and women. It supplanted the “medical model” that focused on

the individual, whose disability was conceived as an infirmity

that precluded full participation in the economy and in society.

The medical model posited that government should direct

resources to rehabilitation programs that would assist

“the handicapped” to overcome their impairments. See Peter

Blanck & Michael Millender, Before Disability Rights: Civil

War Pensions and the Politics of Disability in America, 52 Ala.

L. Rev. 1, 2-3 (2000). The medical model also relegated people

with disabilities to a subordinate role in their er see

ici lo and others who aimed to he

Sion aaelceetetetementtincsumatamnendetod

of the non-disabled. Jd. at 2.

Because the medical model never questioned the physical

and social environment in which disabled people were

forced to function, it countenanced their segregation and

marginalization. And, because it aimed to address the “needs”

of the disabled rather than to recognize their civil rights, the

medical model led to governmental policies that viewed

assistance for the disabled as a species of welfare. See generally

Joseph Shapiro, No Pity: People with Disabilities Forging a

New Civil Rights Movement 41-64 (1993).

By contrast, the civil rights model that began to influence

government policy in the 1970s proposes that disability is a

social and cultural construct. The civil rights model focuses on

the laws and practices that subordinate disabled persons and

insists that government must secure the equality of disabled

10

persons by eliminating the legal, physical, economic, and

paternalistic barriers that preclude their full involvement in

society. See Peter Blanck & Michael Millender, Before Disability

Rights: Civil War Pensions and the Politics of Disability in

America, 52 Ala. L. Rev. 1, 3 (2000).

The paternalism that the ADA was designed to counteract

was chronicled by Congress in the Act’s findings and purposes:

* In the past, “society has tended to isolate and

segregate individuals with disabilities.” 42 U.S.C.

§ 12101(a)(2).

* Discrimination against individuals with disabilities

“persists in such critical areas as employment. . .”

42 U.S.C. § 12101(a)(3).

* Individuals with disabilities “continually encounter

various forms of discrimination,” “overprotective

rules and policies,” as well as “outright intentional

exclusion.” 42 U.S.C. § 12101(a)(5).

* — Individuals with disabilities are often relegated to

“lesser . . . jobs.” 42 U.S.C. § 12101(a)(5).

* Individuals with disabilities have been reduced to

a “position of political powerlessness in our society

... resulting from stereotypic assumptions not

truly indicative of the individual ability of such

individuals to participate in, and contribute to,

society.” 42 U.S.C. § 12101(a)(7). The “continuing

existence of unfair and unnecessary discrimination

and prejudice denies people with disabilities the

opportunity to compete on an equal basis . . . and

11

costs the United States billions of dollars in

unnecessary expenses resulting from dependency

and non-productivity.” 42 U.S.C. § 12101(a)(9).

The integrity of these findings and purposes is potentially

compromised by the EEOC regulations at issue in this case.

B. The Text And Legislative History Of The ADA

Demonstrate That Eliminating Paternalism Was An

Overriding Purpose Of Congress

The legislative history identified “paternalism’™ and targeted

it for elimination as “perhaps the most pervasive form of

discrimination for people with disabilities.” H.R. Rep. No. 485,

pt. 2, at 74 (1990), reprinted in 1990 U.S.C.C.A.N. 303, 356;

see also 136 Cong. Rec. H4614-02, H4623 (daily ed. July 12,

1990); 136 Cong. Rec. $9680-01, $9680 (daily ed. July 13,

1990); H.R. Rep. No. 485, pt. 3, at 42 (1990), reprinted in 1990

U.S.C.C.A.N. 445, 465. Eliminating paternalism goes hand in

hand with ensuring equal opportunity and full participation for

disabled individuals in the workplace.* The Senate Committee

4. See Webster's Encyclopedic Unabridged Dictionary of the

English Language 1056 (1994) (defining paternalism as “the system,

principle, or practice of managing or governing individuals, businesses,

nations, etc. in the manner of a father dealing with his children:

The employees objected to the paternalism of the old president’);

Merriam-Webster 's Collegiate Dictionary 851 (10thed. 1993) (defining

paternalism as “a system under which an authority undertakes to supply

needs or regulate conduct of those under its control in matters affecting

them as individuals as well as in their relations to authority and to each

other”).

5. See Adarand Constructors, Inc. v. Pena, 515 U.S. 200, 240

(1995) (“There can be no doubt that the paternalism that appears to lie

at the heart of this program is at war with the principle of inherent equality

that underlies and infuses our Constitution.”) (Thomas, J., concurring);

Frontiero v. Richardson, 411 U.S. 677, 684 (1973) (explaining that sex

discrimination “was rationalized by an attitude of ‘romantic paternalism’

which, in practical effect, put women, not on a pedestal, but in a cage”).

12

on Labor and Human Resources acknowledged: “(T]he values

and principles underpinning the ADA . . . include the right of

persons with disabilities to independence, inclusion, choice and

self-determination, and access ... and respect for individual

differences.” S. Rep. No. 357, at 7 (1992), reprinted in 1992

U.S.C.C.A.N. 3712, 3718.

A central tenet of the ADA is that people are to be “judged

as individuals on the basis of their abilities and not on the basis

of presumptions, generalizations, misperceptions, ignorance,

irrational fears, patronizing attitudes, or pernicious

mythologies.” 135 Cong. Rec. $4979-02, $4984 (daily ed.

May 9, 1989) (Statement of Sen. Harkin); see also H.R. Rep.

No. 485, pt. 2, at 58 (1990), reprinted in 1990 U.S.C.C.A.N.

303, 340; H.R. Rep. No. 485, pt. 3, at 45 (1990), reprinted in

1990 U.S.C.C.A.N. 445, 468. That core theme was reinforced

in committee reports and proceedings. “{I]t would be a violation

of this legislation if an employer were to limit the duties of an

individual with a disability based on a presumption of what

was best for such individual or based on a presumption about

the ability of that individual to perform certain tasks.” H.R. Rep.

No. 485, pt. 2, at 58 (1990), reprinted in 1990 U.S.C.C.A.N.

303, 340.

Mario Echazabal is a qualified worker within the meaning

of the ADA who successfully performed the various jobs he

held at the refinery. J.A. 10. For twenty years, he worked in

close proximity to the very solvents and chemicals about which

Chevron is now concerned. He was fully able to evaluate and

appreciate the risks posed by the refinery jobs and made

informed choices about whether or not to accept those risks.

J.A. 10, 11, 32. Chevron, moreover, has not cited to any hepatitis-

related workers’ compensation or other workplace accident or

injury claim filed by Echazabal during this time period.

13

None of Chevron’s physicians was willing or able to

calculate or quantify the risk of harm that might befall Echazabal

at any time in the future. They were aware only that sooner or

later his working at the refinery could possibly damage his liver.

J.A. 56. Chevron defended its decision not to hire Echazabal

based on the claim that any risk to Echazabal, no matter how

far in the future and how speculative, would be unacceptable in

light of the company’s aversion to risk.°

Reliance on a medical opinion that is based on future

possibilities, and that seeks to “protect” an individual such as

Echazabal from himself, is precisely what Congress intended

to prevent.’ See, e.g., 136 Cong. Rec. H4614-02, H4623 (daily

ed. July 12, 1990).

Thus, an employer could not use as an excuse for

not hiring a person with HIV disease the claim

that the employer was simply protecting the

individual from opportunistic diseases to which

the individual might be exposed. Thatisaconcern ___

on which the individual should consult with his

or her private physician and make decisions

accordingly.

(Statement of Rep. Owens).*

testimony concerning the risk that an individual in Echazabal’s

nsdmaae health would encounter, one of Chevron’s evaluating

physicians testified that “[aJny level above one percent is liigh for me

when it’s a person's life.” J.A. 88. That same physician testified, without

regard to Echazabal’s own decisionmaking capacities, “I just don t want

this individual to be exposed to hepatoxins.” J.A. 91.

7. Because there is no restriction on the scope of post-offer medical

susceptibilities, or sensitivities, that may predispose an applicant to an

increased risk of harm in the future if exposed to a particular substance

or work environment. See Nicholas A. Ashford et al., Monitoring the

Worker for Exposure and Disease 71 (1990).

8. With advances in medical technology, including genetic

(Cont'd)

14

A regulation or policy that denies disabled employees the

right to decide whether or not to accept the risks posed by a job

would embed into law the notion that all individuals with a

disability are incapable of engaging in basic decisionmaking.

See generally Olmstead v. L.C., 527 U.S. 581, 600 (1999)

(explaining that unjustified institutional placement of disabled

individuals perpetuates stereotypes regarding individual choice).

C. Congress Viewed The Exclusion Of Individuals With

Disabilities Who Pose Only A Direct Threat To

Themselves As An Impermissible Act Of Paternalism

Both chambers of Congress recognized that extending the

direct threat defense to employees who posed a direct threat

only to themselves was an act of entrenched paternalism. Senator

Kennedy stated:

It is important, however, that the ADA specifically

refers to health and safety threats to others. Under

the ADA, employers may not deny a person an

employment opportunity based on paternalistic

concerns regarding the person's health.

For example, an employer could not use as an

excuse for not hiring a person with HIV disease

the claim that the employer was simply ‘protecting

the individual’ from opportunistic diseases to

which the individual might be exposed. That is a

(Cont'd)

screening, there is the potential for excluding large numbers of pre-

symptomatic individuals — “the healthy ill” — on the basis of potential

health or safety risks to themselves in the future. As one commentator

Suggested, the problem with the use of genetic testing to exclude workers

is that “an individual's risk of injury or illness from exposure can be

elevated relative to the average because of genetic inheritance, because

of acquired characteristics, or . . . because of a combination of genetic

and environmental influences.” Edward J. Calabrese, Pollutants in High-

Risk Groups: the Biological Basis of Increased Human Susceptibility to

Environmental and Occupational Pollutants 192 (1978).

15

concern that should rightfully be dealt with by the

individual, in consultation with his or her private

physician.

136 Cong. Rec. $9684-03, $9697 (daily ed. July 13, 1990)

(emphasis added); see also 136 Cong. Rec. H4614-02, H4623

(daily ed. July 12, 1990) (expressing the same concern in

almost identical language).

Congress vested individuals with disabilities with the power

to decide whether or not to apply for or keep working at jobs

that pose risks only to themselves, so long as they meet externally

imposed governmental qualifications and health and safety

standards. Employers were granted the authority to reject

applicants and employees who pose a substantial risk of harm

to others in the workplace.’

9. When first introduced, the ADA did not contain a direct threat

defense. 134 Cong. Rec. $5090-02 (daily ed. April 28, 1988).

When the Act was reintroduced in 1989, Congress added a direct threat

defense to “allay any concerns” that the Act would require employers to

“hire or retain employees who posed a significant risk to others.

136 Cong. Rec. E1913-01, £1915 (daily ed. June 13, 1990); see also

136 Cong. Rec. H2599-01, H2623-24 (daily ed. May 22, 1990);

136 Cong. Rec. $9684-03, $9686 (daily ed. July 13, 1990).

In its initial form, the direct threat defense applied only to

individuals who had a “currently contagious disease or infection.’

135 Cong. Rec. $10701-04, $10703 (daily ed. Sept. 7, 1989). During

consideration by the Committee on the Judiciary, although the defense

was extended to all individuals with disabilities (H.R. Rep. No. 485,

pt. 3, at 23 (1990), reprinted in 1990 U.S.C.C.A.N. 445, 446), the

Committee made the defense more difficult to establish by adding a

definitional section imposing both a significant risk requirement and a

reasonable accommodation requirement: “The term ‘direct threat

means a significant risk to the health or safety of others that cannot be

eliminated by reasonable accommodation.” H.R. Rep. 485, pt. 3, at 34

(1990), reprinted in 1990 U.S.C.C.A.N. 445, 457. a see

on

16

Chevron’s conduct may appear on the surface to be less

egregious than overt acts of intentional exclusion based on

disability. But Chevron and its doctors did not engage in the

interactive process contemplated by the ADA or assist Echazabal

in weighing the pros and cons of his continuing to work around

solvents in the refinery. Most important, they took it upon

themselves to dictate what was best for him, excluding him

from the dialogue and decision. Chevron’s professed motivation

was to avoid liability and to mitigate any costs associated with

the risk of injury. See Brief of Petitioner at 23-28. In the end,

Chevron’s actions threatened Echazabal’s livelihood.

This approach is emblematic of the negative attitudes and

discriminatory employer conduct that the ADA proscribes.

42 U.S.C. § 12101(a)(5).'°

(Cont'd)

Committee’s Report, this definition was intended to “codify the direct

threat standard used by the Supreme Court in School Board of Nassau

County v. Arline.” Id.

Consistent with the purpose of the “direct threat” defense, the

legislative history is replete with descriptions of the defense as applying

only to employees that pose a risk to other individuals.

See 136 Cong. Rec. H1920-04, H1921 (daily ed. May 1, 1990); 136

Cong. Rec. H2421-02, H2449 (daily ed. May 17, 1990); 136 Cong.

Rec. H4614-02, H4617 (daily ed. July 12, 1990); H.R. Rep. No. 485,

pt. 3, at 34, 45-46 (1990), reprinted in 1990 U.S.C.C.A.N 445, 457,

468-69; H.R. Rep. No. 596, at 57 (1990). Cf H.R. Rep. No. 485,

pt. 2, at 56 (1990), reprinted in 1990 U.S.C.C.A.N. 303, 338 (“It is also

acceptable to deny employment to an applicant or to fire an employee

with a disability on the basis that the individual poses a direct threat to

the health or safety of others or poses a direct threat to property.”).

10. See International Union v. Johnson Controls, Inc., 499 U.S.

187, 211 (1991) (“It is no more appropriate for the courts than it is for

individual employers to decide whether a woman’s reproductive role is

more important to herself and her family than her economic role.”);

Dothard v. Rawlinson, 433 U.S. 321, 335 (1977) (“In the usual case, the

argument that a particular job is too dangerous for women may

appropriately be met by the rejoinder that it is the purpose of Title VII to

allow the individual woman to make that choice for herself.”).

17

Il. INCORPORATING “DIRECT THREAT” INTO THE

DEFINITION OF “QUALIFIED INDIVIDUAL”

WOULD UNDERCUT THE STRUCTURAL INTEG-

RITY AND PURPOSES OF THE ACT

Congress crafted the Act to calibrate and balance the

interests of employers and individuals with disabilities. It did

so by creating a structured and tiered analysis that must proceed

in an ordered sequence. Once a determination is made that an

individual has a disability, a determination must be made as to

whether or not the individual is qualified to perform the duties

of the job applied for or held, with or without reasonable

accommodations. Then, and only then, can the employer defense

of direct threat to others be evaluated.

The first question in the sequence is whether or not a person

is “a qualified individual with a disability.” 42 U.S.C. § 12112(a).

That term means “a person who, with or without reasonable

accommodation, can perform the essential functions of the

employment position.” 42 U.S.C. § 12111(8). Fhere are three

embedded considerations: (1) whether the individual

has a “disability;” (2) whether the person can perform the

“essential functions” of the job; and (3) whether reasonable

accommodations are possible.

Congress constructed with meticulous care and phrased in

the present tense the definition of a “qualified individual with a

disability.” The statutory definition is written in the present tense

— an individual who can perform the essential functions — to

denote that present ability, not future ability, to perform the job

is the primary, if not exclusive, consideration. 42 U.S.C.

§ 12111(8). The decision about whether an individual is qualified

must be made “at the time of the job action in question; the

possibility of future incapacity does not by itself render the

18

person not qualified.” H.R. Rep. No. 485, pt. 2, at 55 (1990),

reprinted in 1990 U.S.C.C.A.N. 303, 337."

The intention of Congress with respect to the term “essential

functions” is equally clear. “Essential functions” are those

“Job tasks that are fundamental and not marginal.” H.R. Rep.

No. 485, pt. 2, at 55 (1990), reprinted in 1990 U.S.C.C.A.N.

303, 337 (emphasis added); see also 29 C.F.R. § 1630.2(n)(1)

(2001). Consideration is afforded the employer’s judgment as

to those job tasks that are essential. 42 U.S.C. § 12111(8).

The EEOC’s interpretive guidance notes that “the inquiry into

essential functions is not intended to second guess an employer’s

business judgment with regard to production standards,

whether qualitative or quantitative ...” 29 C.F.R. § 1630,

App. § 1630(2)(n) (2001).

The House Report also signaled that ability is the central

focus at this stage.

The ADA adopts a framework for employment

selection procedures which is designed to assure

that persons with disabilities are not excluded

from job opportunities unless they are actually

unable to do the job. The requirement that job

criteria actually measure the ability required

by the job is a critical protection against

discrimination based on disability.

H.R. Rep. No. 485, pt. 2, at 71 (1990), reprinted in 1990

U.S.C.C.A.N. 303, 353 (emphasis added).

11. In this case, timing alone demonstrates that respondent is a

“qualified individual with a disability.” After having worked at the

Chevron facility for twenty years without incident, he can certainly now

“tolerate” chemical exposure even if, ultimately, he will not be able to

continue to do so.

19

Nothing in the Act, its legislative history, or regulations,

accordingly, suggests that health and safety factors are part and

parcel of whether or not a person is a “qualified individ

under 42 U.S.C. § 12111(8).

The ADA incorporates several employer defenses toa

charge of discrimination against a qualified individual with a

disability. One is that a proposed workplace accommodation

imposes an “undue hardship” on the business. 42 U.S.C.

§ 12112(b)(5)(A). Another is that the applicant does not meet

qualification standards and selection criteria that are

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

§ 12112(b)(6); 42 U.S.C. § 12113(a). The direct threat to others

defense is a subset of the qualifications defense, specifically

carved out by Congress to meet the health and safety aspects 0°

the more general defense. 42 U.S.C. § 12113(a-b).

Despite the structure of the Act, Chevron urges that an

individual with a disability who poses a “threat to self” cannot

be considered “qualified” under the ADA. This argument

mistakenly injects the everyday meaning of the word “qualified

into a tiered, structured, and defined statutory analysis.

This Court has stated in Fox v. Standard Oil Co., 294 U.S. 87

(1935) (Cardozo, J.), that a legislative choice of a definition

that defines terms more narrowly, or with more precision,

prevails over common understanding or usage.

Chevron also contends that Echazabal’s ability to perform the

functions of the job “safely” is an essential function of the position.

Brief of Petitioner at 46. Amici for Chevron urge this Court to

defer to Chevron’s characterization that Echazabal be able to

“tolerate” certain chemicals as an essential function of the plant

helper job. See, e.g., Brief of Amicus Chamber of Commerce at 8,

9. However, the legislative history that speaks to the focus of “job

tasks” and the ability to “do” the job provides no support for

incorporating a health and safety analysis into the question

of whether a person is a qualified individual with a disability.

20

Adhering faithfully to the statutory sequence is critical.

Chevron’s arguments skew the analytical framework of the Act

without compelling reason and contradict the literal and natural

reading of the Act. See EEOC v. Wafflehouse, Inc., No. 99-1823,

slip op. (S. Ct. Jan. 15, 2002) (a statute must be given its “natural

reading”). Under the ADA, health and safety concerns are

reviewed in the context of employer defenses (and, specifically,

the direct threat to others defense). These concerns are not an

appropriate part of the analysis of whether a person is a “qualified

individual with a disability.”

As an articulated aspect of an employer’s defenses

(42 U.S.C. § 12113(a), (b)), health and safety issues can and

must be considered. See 29 C.F.R. § 1630.2(q) (2001) (stating

that qualification standards include “personal and professional

attributes including skill, experience, education, physical,

medical, safety and other requirements” necessary for an

individual to be eligible for the position). As such, health and

safety standards form “qualification standards” or “selection

criteria” and are properly considered only in the context of the

“defense” requirements under 42 U.S.C. § 12113(a).

Health and safety considerations are a critical component

of the Act’s tiered analysis, but are not to be tethered to or

confused with essential job functions or qualifications, except

in extremely limited and narrow circumstances.'? Such

12. The United States and EEOC, as amici, suggest that there are

certain isolated instances in which essential functions will “necessarily

implicate issues of safety.” Brief of Amicus United States at 26.

Admittedly, a firefighter who could not “carry an unconscious adult out

of a burning building,” 29 C.F.R. § 1630, App. § 1630.2(n), would not

be qualified to perform the essential functions of the position and would,

also, be unsafe. Similarly, an airline pilot able to take off and land safely

only “sometimes” could not perform the essential functions of the job.

In both instances, the essential functions need not be analyzed in terms

of safety but, rather, inability consistently to do that which the job always

(Cont'd)

21

considerations apply at a later stage of the analysis. At that stage,

Congress placed the burden on the employer to demonstrate

that its selection criteria or qualification standards are job-related

and reflect business necessity. See 42 U.S.C. § 12112(b)(6)

(“unless” the standard is “job related . . . [and] consistent with

business necessity ...”); see also 42 U.S.C. § 12113(a);

H.R. Rep. No. 485, pt. 3, at 42 (1990), reprinted in 1990

U.S.C.C.A.N. 445, 465 (“[A] facially neutral qualification

standard, employment test or other selection criterion that has a

discriminatory effect on persons with disabilities . . . would be

discriminatory unless the employer can demonstrate that it is

job related and required by business necessity.””) (emphasis

added).'*

Beyond the express intent of Congress, there are good and

sound policy reasons why the business necessity defense in

general, and the direct threat defense in particular, should be

a Consideration of such issues from a health or safety perspective

only clouds the issue of what is required with respect to an essential

functions analysis. See, e.g., E.E.0.C. v. United Parcel Services, Inc.,

149 F. Supp. 2d 1115, 1159 n.3 (N.D. Cal. 2000) (“[D)riving without

accidents is like flying without crashing.”).

13. Achronology of relevant events itself proves conclusively that

Congress intended business necessity (and “direct threat”) to be proven

by the employer. Business necessity is not a new concept in employment

discrimination law. In Wards Cove Packing Co. v. Atonio, 490 U.S. 642

(1989), a disparate impact case arising under Title Vil, the Court placed

the burden of proof with respect to business necessity upon the plaintiff.

Id. at 659. In drafting the ADA, the Senate Committee specifically

referred to allocation of burdens of proof as had existed the day before

the Ward's Cove decision. S. Rep. No. 101-116, at 38 (1989). To further

reinforce the point, Congress later, in the Civil Rights Act of 1991,

clarified the business necessity defense by clearly placing the

burden upon the employer. 42 U.S.C. § 2000e-2(k)(1)(A)(i) (1994).

See Ann Hubbard, Understanding and Implementing the ADA’s Direct

Threat Defense, 95 Nw. U. L. Rev. 1279, 1339-42 (2001).

22

proven by the employer. Congress has incorporated

consideration of the employer’s judgment with regard to the

essential functions of the job. 42 U.S.C. § 12111(8). With respect

to business necessity and direct threat, the employer often will

have superior information and knowledge about workplace

requirements and operations. See generally Peter David Blanck

& Glenn Pransky, Workers with Disabilities, 14 Occupational

Medicine: State of the Art Reviews 581, 586-87 (1999).

Moreover, making certain that business necessity and direct

threat are subject to employer proof allows the mandated tiered

analysis to go forward in an orderly fashion. The careful step-

by-step process of analyzing job placement issues is short-

circuited when defenses and essential functions are conflated

or merged. Collapsing the issues or ‘runcating the process

renders decisions susceptible to the type of myth and paternalism

that gave rise to the civil rights model and the ADA."*

Further, such conflation violates a basic canon of statutory

construction, that no portion ofa statute be rendered superfluous.

See T, RW Inc. v. Andrews, 122 S. Ct. 441, 448-49 (2001)

(recognizing and applying canon); Duncan v. Walker, 121 S.

Ct. 2120, 2125 (2001) (“It is our duty ‘to give effect, if possible,

to every clause and word of a statute.’”) (citing United States v.

14. Cases cited by Amici Equal Employment Advisory Council

and National Association of Manufacturers, in fact, illustrate the

unfortunate effects of analysis of safety functions designated by Congress

as a defense as part of the “qualified individual” analysis. By failing to

respect the analytical rigor required by the statute, unnecessary confusion

can result. See, e.g., LaChance v. Duffy's Draft House, Inc., 146 F.3d

832, 835-36 (11thCir. 1998) (affirming grant of summary judgment on

the basis that plaintiff was not a “qualified individual” but incorporating

“direct threat” analysis where medical condition posed a danger to

plaintiff and “others as well”); Turco v. Hoechst Celanese Corp., 101

F.3d 1090, 1094 (Sth Cir. 1996) (alternate holding quoting with approval

direct threat defense). In either case, the courts clearly could have

separated the “qualified individual” analysis from the direct threat

____—analysis as required by the statute with no violence whatsoever to the

result. -

23

Menasche, 348 U.S. 528, 538-39 (1955), quoting Montclair v.

Ramsdell, 107 U.S. 147, 152 (1883)). Indeed, why would

Congress fashion a separate defense if “direct threat” were

already addressed by the “qualified individual” analysis?

This violates the requirement, recognized by this Court in EEOC

v. Wafflehouse, Inc., that the ADA be given its “natural” reading.

Ill. THE EEOC’S REGULATIONS CONCERNING

DIRECT THREAT TO SELF ARE NOT ENTITLED

TO CHEVRON DEFERENCE

This Court held in Solid Waste Agency of Northern Cook

County v. United States Army Corps of Engineers, 531 U.S.

159 (2001), that an agency exceeds its authority in enacting an

administrative rule that expands a statutory definition. In Solid

Waste Agency, the Court held that the Corps of Engineers

had exceeded its authority when it promulgated regulations that

expanded upon a statutory definition in the Clean Air

Act because it departed from the plain language of the Act.

Id. at 173.

In the ADA, Congress chose to define “direct threat”

narrowly. 42 U.S.C. § 12111(3) (“The term ‘direct threat’ means

a significant risk to the health or safety of others that cannot be

eliminated by reasonable accommodation.”). The EEOC’s

definition of direct threat, and therefore its “direct threat”

qualification standard, unwarrantedly expands the definition

Congress chose to give “direct threat” in the ADA. Further, no

other provision of the statute, including the “direct threat”

defense, supports the EEOC’s regulation. Accordingly, the

“direct threat to self” regulation must be invalidated.

For the same reasons, the EEOC regulation cannot be saved

by the deference accorded agency action in Chevron U.S.A.,

Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837

(1984). The threshold question in determining whether Chevron

deference is appropriate “[f]irst, always, is the question whether

Congress has directly spoken to the precise question at issue

24

... court[{s], ... as well as the agency, must give effect to the

unambiguously expressed intent of Congress.” /d. at 843.

Only “if the statute is silent or ambiguous with respect to

the specific issue, the question for the court is whether the

agency’s answer is based on a permissible construction of the

statute.” Jd. See also United States v. Mead Corp., 121 S. Ct.

2164, 2172 (2001) (holding that a court is “obliged to accept”

an agency’s position only if “Congress has not previously

spoken to the point at issue” and the agency position is

“reasonable”). Delegation occurs only “[w]Jhen Congress has

‘explicitly left a gap for the agency to fill’.” 121 S. Ct. at 2171

(citing Chevron, 467 U.S. at 843-44). Here there is no gap.

Congress defined “direct threat” to mean a significant risk to

others. 42 U.S.C. § 12111(3).'* Nowhere in the Act is direct

threat defined as a “risk to self.” Accordingly, Chevron deference

is not appropriate.

15. Even if a deferential standard is appropriate in this case, the

EEOC regulation is an unwarranted expansion of Congressional intent

in enacting the ADA. As this Court reasoned in Chevron, under a

deferential standard, if a choice of interpretation made by an agency

“represents a reasonable accommodation of conflicting policies that were

committed to the agency’s care by the statute, we should not disturb it

unless it appears from the statute or its legislative history that the

accommodation is not one that Congress would have sanctioned.”

Chevron, 467 U.S. at 845, citing United States v. Shimer, 367 U.S. 374

(1961) (holding same).

Even in the event the Court finds that deference is appropriate, the

purpose of the statute, as expressed in the statute itself, and the legislative

history, make it clear that Congress would not have sanctioned the

interpretation placed on the “direct threat” defense by the EEOC.

The stated purpose and legislative history make it clear that Congress

never intended that employers be charged with determining what risk

an individual with a disability can or should accept in performing his or

her job. See 42 U.S.C. § 12101(a)(5) (setting forth Congressional finding

of discrimination, including . . . overprotective rules and policies . . .

exclusionary qualification standards and criteria, and relegatic: to lesser

. . . Jobs, or other opportunities.”)

25

CONCLUSION

The NCD’s report on federal enforcement of the ADA,

Promises To Keep: A Decade of Enforcement of the Americans

with Disabilities Act (2000), noted that the EEOC’s expanded

definition of direct threat invites outcomes directly at odds with

the ADA. The “threat to self” defense fosters the view that people

with disabilities need to be protected from themselves and from

their choices. This case is about who is best able to make those

most personal of decisions, which here involves encountering

some future risk to health in the workplace.

For the above stated reasons, the decision of the Ninth

Circuit should be affirmed.

Respectfully submitted,

Peter BLANCK*

Professor and Director

LEONARD A. SANDLER

Clinical Professor

and Co-Director

Untversity OF lowa COLLEGE

or Law, AND Law, HEALTH PoLicy

AND DisaBiLiry CENTER

431 Boyd Law Bidg.

University of lowa

~ Jowa City, LA 52242-1113

(319) 335-9043

Diane KUTZKO 7

Mark L. ZAIGER

Douaias R. OELSCHLAEGER

Sarau J. GAYER

SHUTTLEWORTH & INGERSOLL, P.L.C.

500 Firstar Bank Bidg.

P.O. Box 2107

Cedar Rapids, LA 52406

(319) 365-9461

* Counsel of Record Counsel for Amicus Curiae