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

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URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385014_0454%3A19

## Record

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

## Text

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

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385014_0454%3A19. Public record. Not legal advice.