Amicus Curiae Brief — Chevron USA Inc. v. Echazabal

.

MOTION TILED i

+ ARGUED

: IN THE ;

:

Supreme Court of the United States

February 18, 2002

| No. 00-1406

In the Supreme Court of the United States

CHEVRON U.S.A. INC., PETITIONER v.

MARIO ECHAZABAL, RESPONDENT

ON WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

BRIEF FOR PHYSICIANS WHO TEACH

OCCUPATIONAL MEDICINE, Dr. Mark Cullen,

Yale University Medical School Department of

Occupational and Environmental Medicine and

Dr. Tee L Guidotti, The George Washington University

Department of Occupational and Environmental Health

AMICUS CURIAE

SUPPORTING NEITHER PARTY

MOTION REQUESTING LEAVE TO FILE BRIEF OUT OF

TIME AND

BRIEF AMICUS CURIAE

REQUESTING INVALIDATION OF EEOC REGULATIONS

AND WRIT OF MANDAMUS TO

THE SECRETARY OF LABOR FOR OSHA

Ilise L Feitshans JD and ScM , Counsel of Record

Work Health and Survival Project

The George Washington University

School of Public Health Services

The Warwick Building

Washington, D.C. 20530-0001

856 428 0605

No. 00-1406

IN THE

Supreme Court of the United States

February 18, 2002

No. 00-1406

In the Supreme Court of the United States

CHEVRON U.S.A. INC., PETITIONER v.

MARIO ECHAZABAL, RESPONDENT

ON WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

BRIEF FOR PHYSICIANS WHO TEACH

OCCUPATIONAL MEDICINE, Dr. Mark Cullen,

Yale University Medical School Department of

Occupational and Environmental Medicine and

Dr. Tee L Guidotti, The George Washington University

Department of Occupational and Environmental Health

AMICUS CURIAE

SUPPORTING NEITHER PARTY

MOTION REQUESTING LEAVE TO FILE BRIEF OUT OF

TIME AND -

BRIEF AMICUS CURIAE

REQUESTING INVALIDATION OF EEOC REGULATIONS

: AND WRIT OF MANDAMUS TO

THE SECRETARY OF LABOR FOR OSHA

Ilise L Feitshans JD and ScM , Counsel of Record

Work Health and Survival Project

The George Washington University

School of Public Health Services

The Warwick Building

Washington, D.C. 20530-0001

856 428 0605

TABLE OF CONTENTS

Table of Authorities. i-v

Interest of Amicus Curiae . 1

Request to File Brief Amicus Curiae Pursuant to

Rule 37 of this Court 1

Motion to Request Leave for Filing Out Of Time

Due to Extraordinary Circumstances ae

Questions Presented 3

1. Whether the “direct threat" defense available to employers

under the Americans with Disabilities Act (ADA), 42 U.S.C. 12101

et seq. applies to employees, or prospective employees, who pose

a direct threat to their own health or safety, but pose no risk to the

health or safety of other people in the workplace

2. Whether the Equal Employment Opportunity Commission

(EEOC) in administering ADA has the requisite legislative

mandate and expertise to determine that an employee who is at

risk of harm from workplace exposures is a “direct threat of harm

to oneself” although the US Congress had already spoken about

science matters in other laws and delegated authority to

promulgate standards regulating workplace health risks under

OSH Act, two decades before it wrote the ADA.

Summary of Argument 3

Argument 6

I Discrimination Law Can Not Adequately Address the

Problems of »-isk To Oneself At Work, Inherent in Human

Activity, Regardless of Disability 6

A. Sound Occupational Medicine Practice May Require that

Certain Individuals Avoid Certain Risks to Preserve Life,

Health and Avoid Liability 7

B. ADA Does Not Address Issues of “Threat to Harm”

That Impact Workplace Safety and Health 8

Il. Government Authority Exists to Protect Health

Without Reaching ADA's Civil Rights Issues. 9.

A. The Government's Obligation To Protect Health Has

Primacy Under the Doctrine of Parens Patriae.................10

B. There is Precedent in the Federal Law Providing

Special Occupational Health Regulations to Address Risk and

Preserve Life Without Demonstrating Substantial Impairment

or Qualification as Disabled canons 10

C. These Issues Will Emerge Again As New Technologies

Uncover Risks and Propensities Using Genomic,

Toxicogenomic, Protenomic Profiles and New Techniques of

Medical Care .....14

Ill. The US Congress Has Clearly Expressed Its

Intention to Address these Issues. 17

A. Legislative Intent Exists Jurisdiction Under OSH Act For

OSHA, NIOSH and OSHRC to Promulgate Standards Using

Their Expertise.... 17

B. Occupational Health Issues, Unlike Policies that Prevent

Discrimination, Require a Careful Weighing of Epidemiological

Evidence on a Substance by Substance and

Worksite by Worksite Basis As Specific Job Hazards Impact

Individual Employees. 17

C. EEOC Lacks OSH Act ‘s Delegated Authority and Expertise

To Determine Individual Risk at Work. 19

IV. Conclusion. 21

A. EEOC’s “Threat of Harm to Oneself” Regulation Is

Ultra Vires and Therefore Invalid 21

B. This Court Should Issue a Writ of Mandamus Requiring the

Secretary of Labor for OSHA to Promulgate Regulations

About Disabled Workers. 24

TABLE OF AUTHORITIES

Cases

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

467 U.S. 837, 842-845 (1984). Cited 25

Dothard v. Rawlinson 433 U.S. 321, at 328 (1977). Cited 6, 15,20

Echazabal v Chevron, 226 F3d 1063 (2000) Cited 6

Griggs v. Duke Power Co., 401 U.S. 424, (1971) Cited 19

Industrial Union Department v. American Petroleum Institute, 448

U.S. 607 (1980). Cited 20, 24

oy v. Johnson Controls, Inc., 499 U.S. 187, 202 (1991) Cited

IUAW v. Johnson Controls, 886 F.2d 871 (7th Cir. 1989). Cited 20

J.W. Hampton, & Co. v. United States, 276 U.S. (1928) Cited 23

Panama Refining Co. v. Ryan, 293 U.S. 388, (1935) Cited 23

School Bd. of Nassau County v. Arline, 480 U.S. 273 (1987)

Cited 8, 14

Toyota v Williams ___ US ____ (2002) 2002 WL 15402(2002)

Cited $,7,8

Whitman v. Amer. Trucking Assoc. Inc., $31 US 457 (2001)

Cited 22, 23

Wright v. Olin, 697 F.2d 1172 (4th Cir. 1982). Cited 18

Statutes and Regulations

Americans With Disabilities Act (ADA) 42 USC.12101 et seq

p. 1

Civil Rights Act of 1964 Title VII, 42 U.S.C. Section 2000e-2(a),

Section 703(a). P19

Clean Air Act, ss' 172(a)(1)(C), (aX(2)(D), 181(a), amended, 42

U.S.C.A. ss.7502(a)(1)(C), (a)(2)(D), et. Seq. (1990) p22,23

Nuclear Regulatory Commission Regulations, 10 CFR Sections

19.12-19.32;20.1 et. seq. P.10

Occupational Safety & Health Act, 29 USC651 et. seq. (1970)

Scetnees Safety and Health Act, 29 U.S.C. sec.654 (a) (1970).

Sexes Safety & Health Act, 29 USC 661 (c) (1970)

oa Other Authorities

Appendix 1. Text of the ACOEM Code of Ethics, p 28

Equal Employment Opportunity Commission, "Policy Statement

on Reproductive and Fetal Hazards Under Title VII" Fair

Employment Practices Manual (BNA) 401:6013 p18

Feitshans, Dlise L. Bringing Health to Work (1997); p.12

Genetic Destiny: Today’s Laws, Tomorrow's Technology (MCLE

for the Moseley Institute 1999); p15

Feitshans Lise L, ACOEM CME Materials Law and Ethics of

Occupational and Environmental Medicine Programs (San

Antonio 1999, Philadelphia 2000 and San Francisco 2001); p11

Feitshans, Ilise L. Lecture at Yale Medical School, Feb 2000:;

Oct 2000 “Spider Silkk Jeans or Spider Silk Genes: Genetic

Testing in the Workplace” published in: New York Law School

Journal of Human Rights, February 2002; p15

iV

Feitshans, lise L. Review of “From Chance to Choice: Genetics

and Justice” New England Journal of Medicine Sept 14 2000 p 15

Guidotti, Tee L. and Rose, Susan, SCIENCE ON THE WITNESS

STAND OEM Press Mass. (2001). P18

Grad, Frank P., Public Health Law Manual, American Public

Health Association, Washington., D.C. (1990) P 10

HR 4420, 101st Congress, 2d Sess., (1990) "The Employee

Protection Act of 1990", introduced by Rep. Pat Williams, (D-

Montana) P16

Lowrence, W.W., Of Acceptable Risk: Science and the

Determination of Safety, William Kaufman, Inc., Los Altos, Ca.

(1976). P18

U.S. Congress, Office of Technology Assessment Preventing Iliness

and Injury in the Workplace (1985). P18, 19

INTEREST OF AMICUS CURIAE

Dr. Mark Cullen, Yale University Medical School,

Department of Occupational and Environmental Medicine and Dr. Tee

L Guidotti, The George Washington University Department of

Occupational and Environmental Health enjoy the unique expertise

required to train physicians who will ultimately administer and decide

how to implement the decisions of this Court in workplace medical

practice that will apply legal principles prohibiting discrimination

against the disabled. They have each written several books and articles

that are well respected in this field. As professors of occupational

medicine, Amici have each lectured and engaged in clinica! practice in

occupational health for over two decades. Amici are uniquely

positioned to speak with expertise and objectivity; looking to the

public good and feasibility of implementing Americans With

Disabilities Act (4A) goals from the standpoint of students, former

students and prospective students. Amici therefore express their

concer that excessive attention to the role of legal determinations of

discrimination, required of occupational physicians in the field,

without clarification of the importance if not primacy of attention to

risk involved in workplace exposures, inay lose sight of the nation’s

goals, articulated by the US Congress in the Occupational Safety and

Health Act (OSH Act) of 1970 29 USC 651 et seq and the ACOEM

Code of Ethics [Reprinted in Appendix | }that govern their work.

REQUEST TO FILE BRIEF AMICUS CUuRIAE

PURSUANT TO RULE 37 of THIS COURT

A blanket consent to Briefs Amicus Curiae was filed by both

parties. Leave is requested to file under Rule 37 in order to amplify

points made by Amicus Curaie American College of Occupational and

Environmental Medicine (ACOEM). Amicus here expresses

concurrence with the concerns raised ACOEM. ACOEM correctly

raised a red flag about the pivotal role of occupational physicians who

make on the spot determinations that may later be reviewed in post-hoc

litigation while they endeavor to address and cure occupational illness.

Without proporting to represent the views or opinions of ACOEM the

Amicus here wish to underscore certain points made and to request of

this Court that jurisdiction for matters of occupational health be

restored to the appropriate agencies for administering occupational

health laws and regulations.

~ MOTION TO REQUEST LEAVE FOR FILING OUT OF TIME

DUE TO EXTRAORDINARY CIRCUMSTANCES

Amici here request leave to file this Brief out of time because

the extraordinary circumstances of this point in litigation raise subtle

issues of occupational medicine practice that may benefit from insights

gleaned from their knowledge and experience. Their training and

professional endeavors involve application of an unusual confluence

of information from a variety of medical, scientific and technical

systems whose outcomes have an impact on the validity of decisions

that will test the mettle of physicians who seek to synthesize two

essential but divergent goals of social policy. The principles discussed

before this Court in the matter at Bar will actually be applied in daily

life by doctors, whose professional judgement will later be

reviewed to determine whethe: their work comports with both:

notions of occupational health and discrimination prevention under

law. Physicians who teach others how to ethically and accurately

examine the causes and methods for preventing occupational injury

therefore have a special perspective of rarified knowledge to contribute

to this discourse, but were not moved to speak until they read the

ACOEM brief , in which they concur in part. They also wish to

elaborate on subtle points.

Counsel of Record is aware of the lateness of this filing and

therefore wishes to underscore that Amici are not litigants in this case

and therefore have no personal or financial interest in this case or in

its specific outcome. They simply hope to refine public understanding

of certain technical points for the benefit of improving public health

policies. Amici do not request any waiver of statutes of limitations for

any cause of action that would be time barred; they simply request that

at this technically difficult moment in the decisional process, their

information regarding technical matters be heard.

Furthermore, it could be argued that any prior comment by

Amici regarding this case, before the maturation of the discourse to its

present level, would have been premature. Occupational physicians

have often been inappropriately accused of acting as simply a rubber

stamp for employer desires to remove people with expensive or

complex illnesses from arguably risky working conditions. At the same

time, a fundamental tenet of occupational medicine requires each

physician to prevent harm, exemplified by ACOEM’s Code of Ethics

[Appendix 1].Amici hope their sincere concern for the public good will

dispel myths about disability and will engender public trust for their

2

profession.

ADA has become the new mantra for occupational and

environmental medicine practice, because it has changed the

demographics of the USA’s working population by making it illegal to

exclude applicants who have disability or to ask about previous injury

or illness experience unless one can reasonably demonstrate that such

information was not used to discriminate in employment or placement

decisionmaking. Cause of injury does not matter when applying,

during pre-employment screening or medical screening process from

the standpoint of ADA, but it may be at times controlling for specific

workplace health outcomes. Under current practices, the

determinations of whether any job has too high a risk to be acceptable

for any applicant’s health is a difficult question of medical ethics,

faced by many occupational physicians daily; on the other hand, myths

and fears that are not based in sound medical evidence can keep

employable citizens unemployed. Because job hazards vary across

worksites and susceptibility, science medicine and genomic

information increasingly suggests, risk may vary greatly from one

individual to the next without regard to prior health status.

Occupational physicians who sign off on work assignments daily

balance both sets of concerns: respecting genuine risks and teasing

apart myths and fears about potential harm from the circumstances in

a workplace. Thus, the question whether a job is acceptably safe or too

dangerous given specific risks to one individual involves complex

evaluation, best made by physicians, following OSHA regulations.

In such matters, the best medical minds may disagree, but

none can escape their awkward position that places them on the horns

of a professional dilemma: their medical opinion regarding the match

between job applicant and placement in a particular assignment must

be reasonable and justified when taking into account not only the social

need for preventing and ending workplace discrimination against

disabled people, but also by examining scientific and medical

parameters such as ambient exposures in the work environment; as

well as job description, industrial category and individual variations in

the response to risk. When the confluence of job hazard and individual

risk is too great for one to ethically advise that a person accept the

work assignment, the occupational physician who signs off risks

malpractice liability and fosters non-compliance with health laws; and

the occupational physician who signs off on a refusal to hire or place

the same person may unwittingly become a link in the chain of an

3

employer's pattern of practice of discrimination. Therefore, acting

with professional integrity for those who practice occupational

medicine is fraught with personal and professional liability where

there is no safe or neutral ground upon which they can confidently rest

their opinion.

In sum, because of the sophistication and complexity of these

issues as they have ultimately unfolded in this matter, Amici who are

practicing physicians in academia, without legal training and without

scientific concern for any specific outcome feel their unique

understanding and experience governing the daily practice of these

issues should, for the public good, be made available to enlighten the

public and inform this Court of potential ramifications reflected in their

concerns. It is therefore necessary and appropriate that Amici add their

information to the discourse at this time and respectfully request that

this Brief be accepted.

QUESTIONS PRESENTED

Whether the “direct threat" defense available to employers

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

seq. applies to employees, or prospective employees, who pose a direct

threat to their own health or safety, but pose no risk to the health or

safety of other people in the workplace

Whether the Equal Employment Opportunity Commission

(EEOC) in administering ADA has the requisite legislative mandate

and expertise to determine that an employee who is at risk of harm

from workplace exposures is a “direct threat of harm to oneself”

although the US Congress had already spoken about science matters in

other laws and delegated authority to promulgate standards regulating

workplace health risks under OSH Act, two decades before it wrote

the ADA.

SUMMARY OF ARGUMENT

Two powerful drivers in contemporary social policy are on

a collision course: health law and discrimination law. Both drivers are

the source of remedial statutes, designed by the US Congress to

prevent and end evil that threatens to rot the core of society, if left

unchecked. Discrimination law seeks to overcome and replace the

barriers to human achievement of individual potential that are rooted

in myths, stigma and prejudice about the immutable characteristics of

individuals. Health law seeks protect the well-being of individuals,

4

even when that requires a prospective evaluation of risk. Risk,

however, is inherently unequal to different individuals who may be

confronted with the same set of tasks. Furthermore, as scientists study

in greater detail the relationship between toxicology and genetics,

pharmacology and a variety of host-environmental interactions, it is

clear that risk analysis can become more complex but many risks

nonetheless cluster around the identical characteristics that are the red

flag for concerns of discrimination under law: science finds that

human risk differs by race, ethnicity, national origin, age, health status

or functional disability, and sex.

Thus, the social desire to remove or overcome barriers to

discrimination must, at times, yield when individual scrutiny of a

patient’s needs reveals natural barriers to health, in order to preserve

life and prevent human suffering, which is an ultimate obstacle to

human achievement and civilization’s survival.

This Court has recently stated in Toyota v Williams__ US__

(2002) 2002 WL 15402(2002) that special protections accorded to

disabled individuals under the Americans With Disabilities Act (ADA)

require the protected individual to demonstrate “substantial

impairment” in the performance of one or more major life activities.

The Court so determined, without commenting on the attendant issues

of risk that may color a disabled individual's ability to perform certain

tasks. Yet, risk is endemic in the human condition and more

importantly, no set of tasks, at work or elsewhere, can be performed

without any risk to oneself. Sound principles of industrial hygiene and

occupational medicine will, on occasion, dictate that individuals refrain

from engaging in an activity due to risk, regardless whether that person

is healthy or disabled. The fundamental social goal of protecting

human life from risk was addressed by the US Congress two decades

before the writing of the ADA, as codified in the Occupational Safety

and Health Act of 1970 (OSH Act). Thus, questions regarding the

relative risk of prospective harm for individuals in a given workplace

who are not substantially impaired and may be otherwise qualified for

employment is subject to OSH Act jurisdiction, not ADA. This Court

cannot al'ow overzealous desire to prevent discrimination to render

politically incorrect long-standing health values that must be promoted

in order to ensure the survival of our society. Therefore the EEOC

regulations concerning the “threat of harm” to oneself are the ultra

vires product of an agency that has exceeded its delegated

authority.Said regulations therefore are invalid.

5

ARGUMENT

I. Discrimination Law Can Not Adequately Address the Problems

of Risk To Oneself At Work Inherent in Human Activity,

Regardless of Disability

In the case at bar, this Court grapples with an ancient and

unresolved human conundrum that goes to the essence of work, health

and survival of human society. The Americans With Disabilities Act

(ADA) of 1990 was written by the U.S. Congress to prevent the harms,

caused by discrimination in the workplace, that arise because of

unfounded stereotypes about disability and the nature of illness in

society in general. Neither ADA nor its antecedent statute, Title VII

was designed to address issues of health and welfare. Cases that have

tested the limits of such jurisdiction have allowed workers to continue

their exposure to risks in the workplace, without regard to the

Occupational Safety and Health Act’s health and welfare rationale.

This was noted by the Ninth Circuit, which cited with approval the

concept that “danger to a woman herself does not justify

discrimination” Echazabal v Chevron, 226 F3d 1063 (2000) citing

IUAW v Johnson Controls, 499 US 202 (1991) citing Dothard v.

Rawlinson 433 U.S. 321, at 328 (1977).

The Equal Employment Opportunity Commission (EEOC)

enforces Title I of the Americans with Disabilities Act of 1990 (ADA),

42 U.S.C. 12111 et seq., with respect to private employers and is

authorized to issue regulations under that Title. This case concerns

whether Title I authorizes an affirmative defense for cases in which an

individual will pose a direct threat to the health or safety of that

individual. The Ninth Circuit Court of Appeals in this case invalidated

the EEOC regulations that recognized this affirmative defense. Title

I of the ADA prohibits an employer from discriminating against a

“qualified individual with a disability." 42 U.S.C. 12112(a). A

“qualified individual with a disability" is a person “who, with or

without reasonable accommodation, can perform the essential

functions of the employment position.” 42 U.S.C. 12111(8). ADA

states "[i]t may be a defense to a charge of discrimination under [the

ADA] that an alleged application of qualification standards, tests, or

selection criteria that screen out or tend to screen out or otherwise deny

a job or benefit to an individual with a disability has been shown to be

job-related and consistent with business necessity, and such

performance cannot be accomplished by reasonable accommodation."

6

42 U.S.C. 12113(a).

The US Supreme Court case Toyota v Williams US

(2002) 2002 WL 15402(2002) held that merely having an impairment

does not make one disabled for the purposes of ADA. In Toyota, the

Court held that 42 USC 12102(2)a) requires demonstrated substantial

impairment of a major life activity, and not the mere diagnosis or

evidence of impairment (slip op 13 and 14). Thus, a worker whose

workplace practices could be altered to reduce injury did not enjoy

discrimination protections as a “disabled person” under ADA, because

she did not suffer substantial impairment of the ability to perform one

or more major life activities even though she suffered a documented

case of carpal tunnel syndrome. Significantly, her case, had she

succeeded, would have brought her monetary relief, not health care, to

relieve her suffering. More significantly, from the standpoint of public

policy and the practice of occupational medicine, nothing in ADA or

the EEOC regulations there at bar would have mandated a change in

workplace practices or procedures that would prevent her colleagues

from suffering the pains of preventable injury.

A. Sound Occupational Medicine Practice May Require that

Certain Individuals Avoid Certain Risks to Preserve Life, Health

and Avoid Liability

Respondent Mario Echazabal began working at an oil refinery

owned by petitioner Chevron U.S.A., Inc. in 1972. Employed by

various contractors, respondent worked at different times for petitioner

as a laborer, helper, pipefitter, and on the fire watch. Respondent

worked primarily in the refinery's coker unit. Pet. App. 2a. In 1992,

respondent applied to work directly for petitioner in the refinery’:

coker unit. Petitioner made respondent an offer of employment

contingent upon his passing a physical examination. Said examination

by petitioner's physician revealed that respondent's liver was releasing

certain enzymes at a higher than normal level. Based on that

examination, petitioner concluded that respondent's liver might be

damaged by exposure to the solvents and chemicals present in the

coker unit. Petitioner therefore rescinded the job offer. Pet. App. 2a.

After respondent consulted several doctors, he was diagnosed with

asymptomatic, chronic active Hepatitis C, a viral infection of the liver.

Pet. App. 3a, 35a. Respondent continued to work as an employee of

petitioner's maintenance contractor. Id. at 2a. In 1995, respondent again

7

applied to petitioner for a position as a plant helper in the coker unit.

Petitioner again made respondent an offer contingent on a physical

examination. Pet. App. 3a, 35a. Petitioner's examining physician

_concluded that further exposure to chemicals and solvents like those

used in the coker unit would seriously endanger respondent's health

and, in certain circumstances, could be fatal. Id. at 38a; C.A. E.R. 81-

82. Petitioner's medical director agreed that respondent could not work

in the coker unit without risk to his own health. Pet. App. 38a. Based

on the those findings, petitioner refused to hire respondent. Id. at 3a.

Petitioner also instructed its maintenance contractor to ensure that

respondent was not exposed to solvents and chemicals; and, as a result,

respondent could no longer work at the refinery. Ibid.

Respondent brought an action in state court alleging

discrimination on the basis of a disability that violated ADA. Pet.

App. 3a. Petitioner removed the case to the United States District Court

for the Central District of California. Id. at 32a. The district court

granted summary judgment in favor of petitioner on all of respondent's

claims. Id. at 32a-57a. On the ADA claim, the district court found that

petitioner's refusal to hire respondent was lawful because, as a result of

respondent's liver condition, his working in the refinery would have

posed a direct threat to his health. Id. at 46a-52a. The district court

stayed the proceedings against the maintenance contractor, and

certified several issues for appeal, including the propriety of the grant

of summary judgment on the ADA claim. Id. at 3a-4a. Because the

risks are prospective, and speculative at best, and there is no substantial

impairment of the ability to perform one or more major life activities,

(Toyota v Williams _US__(2002) 2002 WL 15402(2002)) this

individual can only enjoy ADA protection if this Court were to find

that the protected worker suffers from stigma for illness that is “not

manifest” ( School System School Bd. of Nassau County v. Arline, 480

U.S. 273, 287 (1987) ("an individualized inquiry" protects disabled

individuals "from deprivations based on prejudice, stereotypes, or

unfounded fear"). This determination is irrelevant, however, if the

affirmative defense itself is invalid, as are the regulations at bar for the

reasons set forth below.

B. ADA Does Not Address Issues of “Threat to Harm” That

Impact Workplace Safety and Health

Cursory application of medical knowledge embedded in

EEOC regulations cannot rise to the level of prospective, preventive

legislation that is the essence of the authority to protect the health and

safety of all workers and provide “employment and places of

that are free of recognized hazards” in the USA OSH Act

Sec 5(aX1), 29 USC 654(a)(1). In no case could ADA provide the risk

assessment criteria or a statutory basis for prospective alteration of

working conditions that could actually minimize risk or reduce the

likelihood of iniury or harm. As noted by Judge Trott in dissent in

Echazabal v Chevron 226 F3d 1063 (2000) (dissent), “Our law books,

both state and federal, overflow with statutes and rules designed by

representative governments to protect workers from harm. Long ago

we rejected the idea that workers toil at their own peril in the

workplace....In many jurisdictions, it is a crime knowingly to subject

workers to life-endangering conditions. California Labor Code S 6402

expressly forbids an employer from putting an employee in harms way.

In Arizona, an employer who fails to provide a safe workplace

commits a felony. Ariz. Rev. Stats. Annot., Labor S 24-403, S 23-418.

In effect, we repeal these laws with respect to this appellant, and to

other workers in similar situations. So much for OSHA. Now, our laws

give less protection to workers known to be in danger than they afford

to those who are not. That seems upside down and backwards.”

Echazabal v Chevron, 226 F3d 1063 (2000), Trott, J. Dissenting

(Citations in original)

Il. Government Authority Exists to Protect Health Without

Reaching ADA's Civil Rights Issues

Judge Trott wisely asked in his dissent, “Did Congress really

intend to nullify state and federal workplace safety laws and render

them impotent to protect workers in identifiable harms way?” ADA

defines “direct threat" as a “significant risk to the health or safety of

others that cannot be eliminated or reduced by reasonable

accommodation.” 42 U.S.C. 12111(3), without commenting upon the

criteria for diagnosis or medical determination of the severity,

prognosis or treatment of the disabling condition. When passing the

ADA, the US Congress required the EEOC to issue regulations to carry

out the provisions of Title I, and the EEOC, following public notice

and comment has issued regulations pursuant to that mandate, 56 Fed.

Reg. 35,726 (1991). Consistent with the statutory tex., ure regulations

provide that an employer may defend against a charge that a

qualification standard improperly screens out a disabled individual by

showing that the standard is “job-related and consistent with business

9

necessity, and such performance cannot be accomplished with

reasonable accommodation.” 29 C.F.R. 1630.15(b)(1). In elaborating

on that defense, the regulations state 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). The 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).

A. The Government's Obligation To Protect Health Has Primacy

Under the Doctrine of Parens Patriae.

Public health preventive strategies typically categorize

individuals in sub-groups according to risk in order to prevent

avoidable or foreseeable harms. Under the doctrine of parens patriae,

state and federal governments have consistently recognized the need on

occasion to abridge or modify legal views of individual rights, in order

to preserve the public health. Examples abound, including but not

limited to: abrogation of privacy rights in order to collect and preserve

personal data in vital records, (births, deaths and specified diseases);

restriction of the person, quarantine; and restriction in the use of

private property without constituting a “taking” in cases of zoning to

prevent pollution or public nuisances. Grad, Frank P., Public Health

Law Manual, Amer. Public Health Assoc. , Wash. D.C. (1990)

B. There is Precedent in the Federal Law Providing Special

Occupational Health Regulations to Address Risk and Preserve

Life Without Demonstrating Substantial Impairment or

Qualification as “Disabled”

Federal law regulations already exist that divide groups of

workers according to sub-populations. For example, the Nuclear

Regulatory Commission (NRC) has different standards for workers

under age 18 compared to other workers. NRC also instituted

regulations with different standards for the general public, for exposed

employees, and for “fetal exposure” in the event of so-called “declared

pregnancy” Nuclear Regulatory Commission Regulations, 10 CFR

Sections 19.12-19.32;20.1 et. seq.. U. S. Congress has also spoken to

Occupational Safety and Health Act of 1970 grants the Secretary of

10

Labor authority to protect workers “functional capacity” against

“recognized hazards”, including health hazards in the workplace and

a host of compensation laws provide compensation for work-related

disabilities, such as black lung and harms to federal employees. This

Petitioner has not violated the relevant OSHA regulations, nor been

cited by OSHA for unacceptable practices regarding health hazards.

And, weaknesses in OSHA regulations or an agency's reluctance to

grapple with these issues should not give rise to any inference that

others hold the proper venue for regulating these important risks.

Rather, there is ample authority under OSH Act for OSHA to play a

more active role in this area.

Onc fundamental tenet of occupational medicine requires that

physicians prevent harm, as exemplified by the ACOEM Code of

Ethics. ADA has become the new mantra for occupational and

environmental medicine practice, because it has revolutionized the

workforce by making it illegal to exclude applicants who have

disability or to ask about previous injury or illness experience,

regardless of the cause of harm- whether from prior exposures in the

workplace, leisure activities , sports or home. Feitshans, Ilise L. ;

ACOEM Continuing Medicial Education (CME) Materials “Law and

Ethics of Occupational and Environmental Medicine Programs (San

Antonio 1999, Philadelphia 2000 and San Francisco 2001.

Furthermore, determinations of access to medical records, transfer of

information between employers and insurers, and relevant data

regarding fitness to work are routinely trafficked trough the offices of

occupational physicians. Their pivotal role in the employment process

involves deciding on a daily basis, whether any job has too high a risk

to be acceptable for any applicant’s health. This raises difficult ethical

questions, faced by many occupational physicians daily, because job

hazards vary across worksites. Thus, the question whether a job is

acceptably safe or too dangerous for the risks to be acceptable is a

subtle and complex evaluation that can best be made by occupational

physicians following OSHA regulations. On such matters, the best

medical minds may disagree about the implementation of specific

recommendations on a patient by patient basis, but none can escape

their awkward position that places them on the horns of a professional

applicant and placement in a particular assignment must be reasonable

and justified when taking into account not only the social need for

11

preventing and ending workplace discrimination against disabled

people, but also by examining scientific and medical parameters such

as ambient exposures in the work environment; as well as job

description, industrial category and individual variations in the

response to risk.

Once the confluence of job hazard and individual risk is too

great for them to ethically advise that person accept the work

assignment, the occupational physician who signs off risks malpractice

liability and fosters non-compliance with health laws; and the

occupational physician who signs off on a refusal to hire or place the

same person may unwittingly become a link in the chain of an

employer’s pattern of practice of discrimination. Therefore, acting

with professional integrity for those who practice occupational

medicine is fraught with personal and professional liability | where

there is no safe or neutral ground upon which they can confidently rest

Thus, many physicians pro-actively foster the employment of

workers against the employer’s desire to reject them on grounds of ill-

health that is awkward in the worksite although not so severe that it

substantially impairs the performance of one or more major life

activities. Such doctors have an ethical obligation to support a decision

by an employer to deny assignment in cases of high risk and high

probability of harm. See: Feitshans, I.L. Bringing Health to Work

(1997) at 127-129. Examples include: disabled individuals who

applies to an industrial firefighting and rescue brigade in an oil refinery

and chemical plant, or people with asthma whose occasionally

experienced bronchospasm made them ill-advised for firefighting;

these cases present a situation where an individual should not be placed

because of the risk of harm to oneself or others. In such contexts, there

is a valid concern, as expressed by the medical director of the

company was that the applicant was at high risk for getting into a

situation that he could not get out of. Not only might his asthma be

aggravated in an emergency situation with smoke and airborne imitant

exposure, but his exercise capacity would drop abruptly and

unpredictably and he could easily find himself trapped. Determining

when such rare instances raise valid concerns, however, is not so easy

in the daily practice found in offices of occupational physicians, where

the rubber of implementation of ADA prohibitions against

discrimination meets the road of commerce. Many lawyers and other

professionals may subsequently second guess the decision of

12

occupational physicians, who err on the side of caution and desire to

do no harm. This is where it is imperative, however, that the actual

determinations about job hazard analysis be made by experienced

medical staff who are bound by the personal liability of their standing

as professionals, and where they be given the best scientific evidence

in order to implement protective programs. In these instances, the US

Congress spoke to three different agencies, the Occupational Safety

and Health Administration (OSHA) the National Institute of

Occupational Safety and Health (NIOSH) and the Occupational Safety

and Health Review Commission (OSHRC) two decades before it wrote

ADA.

Fundamentally, the normal operation of a workplace should

be governed by occupational health and safety standards. If a worker

qualifies for the work under ADA, the proper rule governing their

safety *s occupational health regulations. ADA was also not intended

to cover the situation when a worker belongs to a small subset of the

general population with an uncommon health problem and by virtue of

this problem is exquisitely more susceptible to injury than the majority

of people. Occupational exposure limits are not set to take into account

the tail of the curve or subsets of people who are more susceptible by

orders of magnitude, but can be handled under standards recognized by

the scientific community as reasonable and appropriate. The usual PEL

may be expected to injure a very small fraction of the general

population (e.g. the 90 dB TWA noise standard, with an 85 dB action

level, is still associated with something on the order of 5% noise-

induced hearing loss in occupations with consistently high noise levels

approximating the PEL). Another common situation involves people

who have become sensitized to workplace chemicals; the sensitization

may occur well below the PEL and screening out workers by virtue of

a history of allergies is not useful because their risk of becoming

sensitized to any one exposure is only slightly higher than anybody

else.

In such cases, the physician who overlooks medical criteria not

contemplated by Congress within the four corners of ADA overlooks

also the enforcement and threshold health requirements to provide

“employment and places of employment that are free of recognized

hazards”, OSH Act 29 USC 654.

At the same time, certain types of illnesses that can be

aggravated by workplace exposure may be clustered by genetic factors,

race, family history, ethnicity or sex. Thus, sound medical reasoning

13

may not always comport with legal efforts to prevent discrimination,

unless one completely overlooks efforts to prevent disability. Many of

these conditions, however, have their greatest impact upon populations

who face potential risk which can be minimized through sound

industrial hygiene practice or engineering controls, custom tailored to

meet the needs of the patient who is an applicant for employment. The

solution, therefore, requires opening up OSH Act authority to

promulgate health standards and enforce preventive regulations, which

must be crafted with due regard to discrimination parameters. This

does not, however, mean use of an affirmative defense by employers

who are concerned about a risk of threat of harm to oneself, which

ultimately would render unemployable, by definition, most people

who are subject to special allergies or particularly vulnerable to

opportunistic infections.

C. These Issues Will Emerge Again As New Technologies Uncover

Risks and Propensities Using Genomic, Toxicogenomic,

Protenomic Profiles and New Techniques of Medical Care

The laws of nature do not know legal boundaries drawn by

humans. Some occupations necessarily require acceptance of

unpredictable risk. For example, firefighters presenting to an

occupational physician might require that the legal concept of essential

functions of the job must include the capacity to perform in extreme

situations. A second concern is that an unacceptable future risk of

injury or death, even if the person can do the job under normal

circumstances, must be ethically be viewed as a reasonable

disqualification from the perspective of the physician who seeks to

prevent harm. . When rooted in medical evidence that can be reviewed

by peers or in cases of imminent danger, distinct risk factors can be

distinguished from the circumstances where prejudiced views of

tuberculosis that was in remission and was not a threat to others in

School Bd. of Nassau County v. Arline, 480 U.S. 273, 287 (1987) (“an

individualized inquiry” protects disabled individuals “from

deprivations based on prejudice, stereotypes, or unfounded fear”).

There is no blanket judge-made rule, however, that can govern such

situations, or to prevent a rule of caution from becoming a slippery

slope that ultimately becomes arbitrary and capricious in its

application, with discriminatory results.

This problem will become greatly exacerbated as the human

14

yenome project uncovers the benefits of genetic testing in the

workplace. Feitshans, Ilise L. GENETIC DESTINY: TODAY’s

LAWS, TOMORROW’s TECHNOLOGY (MCLE for the Moseley

Institute 1999); “Spider Silk Jeans or Spider Silk Genes: Genetic

Testing in the Workplace”; New York Law School Journal of Human

Rights, February 2002 ; Review of “From Chance to Choice: Genetics

and Justice” New England Journal of Medicine Sept 14 2000. Genetic

preconditions and other high-tech biological profiles cluster in families

and thus are immutably linked to characteristics such as sex, race

ethnicity or national origin, the use of which as criteria in employment

might resemble prohibited demarkations for polices under the law of

discrimination.

The “discrimination prohibitions” in OSH Act Sec 11 ¢ 29

U.S.C. 661(c) has been interpreted by this Court to provide a right to

refuse hazardous work in the face of imminent danger . This right

applies without regard to race, sex, age, ethnicity or disability. But it

does not on its face comport with the notion, articulated in TUAW v

Johnson Controls as approved by the Ninth Circuit. Citing the Johnson

Controls-Dothard precedents, the Echazabal court characterized

these cases as standing for the proposition that “threats of lead

exposure to female employees’ own reproductive health did not justify

the employer's decision to exclude women from certain positions at a

battery manufacturing plant.” It cannot make sense however, that

Congress's decision in the Title VII context to allow all individuals to

decide for themselves whether to put their own health and safety at

risk, it would enact legislation allowing the same freedom of choice to

disabled individuals.

The specialized expertise of administrative standard setting

and regulations is required to be even-handed while applying the best

available scientific and medical evidence. Because such situations do

not involve accommodation to a normal job, with static work

requirements, and given that the worker is rarely disabled from

activities of daily living or usual tasks in this situation, one could argue

that it is not a situation ADA was designed to cover, but nonetheless an

extreme case of the usual fitness-to-work requirement imposed by

employers. It is at this commonplace point in the worksite, however,

where the view of the majority can be synthesized with the view of the

dissent, by taking judicial notice of OSH Act’s vital role “to preserve

15

the health of working men and women and protect our Nation's human

resources” in OSH Act’s stated purposes.

As Judge Trott correctly noted in his dissent, “Because the job

most probably will endanger his life. I do not understand how we can

claim he can perform the essential functions of the position he seeks

when precisely because of his disability, those functions may kill him.

To ignore this reality is bizarre”Echazabal v Chevron, 226 F3d 1063

(2000). Trott, J., dissent).

In the prior cases that visited this matter a decade ago, this

Court ruled that fetal protection policies constitute prima facie

discrimination, with the awkward result that employers are compelled

to allow women into high risk workplaces, without the benefits of risk

assessment, medical surveillance or other scientific evidence that

health-related administrative agencies, can best review. Ruling

otherwise would have required unduly stretching the narrow exceptions

in Title VII, inconsistent with case law and its legislative history, and

also without providing employers or employees the benefits of sound

scientific evaluation of conditions on a case-by-case basis. Neither

approach provided a viable solution to high-risk exposures that may

affect men and/or women, or addressed posterity’s need to protect fetal

health. HR 4420, 101st Congress, 2d Sess., (1990) "The Employee

Protection Act of 1990", introduced by Rep. Pat Williams, (D-

Montana) Furthermore, each of those approaches is antithetical to good

industrial hygiene practices or public health strategies. (outlined

below).

In this regard, the Ninth Circuit Court of Appeals was correct

to state that the US Congress, in writing ADA, deliberately parsed its

language to express concern for a disabled person’s risk of injury to

others (as in the case of mental patients or people with contagious

diseases) but not to harm to oneself, since the safety net for

determining the acceptable level of risk in the workplace is determined

by a pre-existing regulatory agency, OSHA, which has both the

statutory mandate and regulatory history to promulgate and enforce

standards that reduce risk. Armed with NIOSH research, OSHA has the

power to alter working conditions. Such standards that are even-handed

and applied in the workplace are subject to administrative and judicial

review, having withstood the tests of OSHRC and this Court.

16

IIL. The US Congress Has Clearly Expressed Its Intention

to Address these Issues

A. Legislative Intent Exists Jurisdiction Under OSH Act

For OSHA, NIOSH and OSHRC to Promulgate Standards Using

Their Expertise

Fortunately for the case at bar, the US Congress has spoken

loudly and often on these subjects, with ample authority delegated to

its agencies who have, in the nearly three and a half decades since the

passage of OSH Act in 1970. Under this statute, there has developed

a body of the requisite administrative expertise to approach these

questions. Several principles of legislative drafting discussed by the

Ninth Circuit Court of Appeals in the case at bar point to the seminal

importance of this void in the ADA that Congress not only knew about,

but had already filled under health law. Under OSHA regulations that

already exist, however, if a worker can be proven to have a risk much

greater than the average person at a given PEL, they should not be

allowed to work in an occupation where the exposure may lead to this

risk. The argument then becomes what risk is acceptable (>50%7) and

is this a violation of the usual principle that we do not deny

employment on the basis of future prognosis or risk, as in the case of

hiring asymptomatic HIV-positive individuals or individuals with

Hepatitis C?

This Court must therefore take judicial notice of the

fundamental and inevitable character of the health concerns in the case

at bar, and thereby determine that although an individual who is

otherwise qualified for employment may nonetheless present too great

a risk to oneself ethically, morally, or legally be placed in a toxic

workplace, but that the proper agency to apply its expertise in making

such a determination is the Occupational Safety and Health

Administration that promulgates health standards under the OSH Act

and which also has the authority to promulgate health standards,

inspect, and enforce abatement of working conditions, rather than the

EEOC that enforces the ADA.

B. Occupational Health Issues, Unlike Policies that

Prevent Discrimination, Require a Careful Weighing of

Epidemiological Evidence on a Substance by Substance and

Worksite by Worksite Basis As Specific Job Hazards Impact

Individual Employees.

Risk and the attendant effects of known or recognized hazards

17

encompass all agents which have an adverse effect heal‘li. Risk

assessment attempts to describe the causal relationship between

adverse effects and environmental factors such as chemicals, radiation,

stress, and pathogens, Lowrence, W.W., Of Acceptable Risk: Science

and the Determination of Safety, William Kaufman, Inc., Los Altos,

Ca (1976). Reliance is placed upon toxicological and epidemiological

studies which relate specific agents to adverse outcomes. U.S.

Congress, Office of Technology Assessment, Preventing Illness and

Injury in the Workplace, Washington D.C. 1985, Ch. 3. The

unprecedented scientific discoveries regarding medical treatment and

the natural history of disease have caused an inevitable but useful

overlap in the use of risk assessment in many areas of the law in recent

years. See: Susan Rose and Tee Guidotti, Science on the Witness

Stand, OEM Press Mass. 2001, in particular Chapter 17, Ilise L.

Feitshans, “Evidentiary Standards in Occupational Health Law”.

The objective of risk assessment is not simply to identify a

connection between a hazardous agent and an adverse effect. Exposure

to the agent must be quantified in the form of a measurable index such

as air contaminant concentration, absorbed dose, or blood chemistry.

Sound industrial hygiene practice recognizes a hierarchy of controls to

reduce or eliminate workplace hazards, U.S. Congress, Office of

Technology Assessment Preventing Illness and Injury in the

Workplace, Washington, DC 1985, Ch.3. The preferred approach,

where feasible, is to redesign a work process to eliminate or reduce

hazards by substituting materials, curtailing harmful emissions, or

isolating the worker from the hazardous process.

As noted by Former Secretary of Labor for OSHA, Dr.

Morton Cor, the nature and severity of effects is characterized at

varying levels of exposure, U.S. Congress, Office of Technology

Assessment Preventing Illness and Injury in the Workplace,

Washington, DC , 1985, Ch.3. Previous attempts by EEOC to provide

meaningful criteria in areas of health law have proven to be inadequate.

For example, on October 3, 1988, the EEOC issued a Policy

Statement on Reproductive and Fetal Hazards Under Title VII, "Policy

Statement on Reproductive and Fetal Hazards Under Title VII" Fair

Employment Practices Manual (BNA) 401:6013. The EEOC criteria

for a fetal protection policy, as restated by the Court of Appeals in

Wright v Olin 697 F2d 1172 (1982) can be summarized as: (1)

substantial risk of reproductive harm; (2) risk via exposure of one sex

but not the other sex; and (3) ability of the policy to eliminate risk,

. 18

IUAW vy. Johnson Controls, 886 F2d 871 at 886. These criteria do not

reflect the quantitative aspect of scientific risk assessment, U.S.

Congress, Office of Technology Assessment Preventing Iliness and

Injury in the Workplace, Washington, DC 1985, Ch.3. Furthermore,

risk assessment could not be easily reviewed by a court without prior

administrative review by an agency that has expertise in the application

of scientific evidence to occupational health criteria. Using the results

of such analysis without considering the scientific context in which

they were developed could cause equal or greater harm than the risk to

be avoided. Application of industrial hygiene controls would

constitute such an alternative, but could not be easily evaluated by an

administrative agency that is not familiar with issues of occupational

safety and health.

The next option is work practice controls, which involve

training employees to work more safely, or administrative controls,

which limit the duration of an employee's exposure. Using exposure

monitoring, medical surveillance and enhanced industrial hygiene

controls, it is possible to create alternatives for control. A final resort

is the use of personal protective equipment such as respirators. The

rationale for this hierarchy is a preference for the most reliable method

among feasible controls, U.S. Congress, Office of Technology

Assessment Preventing Illness and Injury in the Workplace,

Washington, DC , 1985, Ch. 9.

The ability to implement any good industrial hygiene program

depends upon the hygienist's ability to tailor required programs to the

substances, exposures and working population in a given workplace,

Id. Feasibility depends upon the configuration of the workplace; the

cost and availability of necessary technology; the effectiveness of

worker training; and the willingness of the employer to commit

resources toward developing new control technology, /d. Recognizing

that the feasibility of controls is not a static parameter, men and women

have occupational exposure to a variety of job specific risks would be

enrolled in programs that meet their individual needs.

C. EEOC Lacks OSH Act ‘s Delegated Authority and

Expertise To Determine Individual Risk at Work

ADA’s theoretical antecedent, as cited in its legislative history

is Title VII of the Civil Rights Act of 1964 42 USC S 703. Under Title

VII, Congress required “the removal of artificial, arbitrary, and

unnecessary barriers to employment when the barriers operate

19

- invidiously to discriminate on the basis of racial or other impermissible

classification.” Griggs v. Duke Power Co., 401 U.S. 424, 431 (1971);

Dothard v. Rawlinson 433 U.S. 321, at 328 (1977). In International

Union of United Auto Workers (IUAW) v. Johnson Controls, 886 F2d

871 (7th Cir. 1989); 499 US 202 (1991) this Court miled that any

Fetal Protection Policy constitutes prima facie discrimination in

violation of Title VII, because it prohibits employment of fertile

women in high-exposure jobs in lead battery production. It was

undisputed that lead is one of the most dangerous environmental toxins

and that transplacental transfer of lead in a pregnant woman to her

unborn child can cause a significant risk of damage but discrimination

analysis mandated that women be allowed to work, without the benefit

of medical surveillance, scientific criteria regarding risk or risk

assessment reflected in the best industrial hygiene, occupational

medicine practice or engineering controls.

It cannot be, however, that this Court or Congress intended a

result that does not limit individual harm without regard to the

independent views of regulators and occupational physicians. Any

level of risk from exposure that prevents an exclusionary policy,

regardless of its harsh working conditions, or the large class of workers

that are affected by it, could be justified under this view. In the case at

bar, there is no evidence that the risk respondent allegedly poses to his

own health renders him unable to perform his job. But, if applied here,

the Johnson Controls criterion will foster an approach that will allow

all workers to obtain employment without regard to particular high-risk

exposures. This approach runs the greater risk of paying nominal

deference to discrimination concerns, without guaranteeing adequate

industrial hygiene protection; it therefore is antithetical to good

industrial hygiene practices and sound public health strategies.

All work has risks. As Chief Justice Burger noted in

Industrial Union Dept., AFL-CIO v. American Petroleum Institute,

448 U.S. 607, 646, 100 S.Ct. 2844, 65 L.Ed.2d 1010 (1980), there is

no such thing as a “risk-free” environment. Thus, when writing ADA,

Congress wisely looked to the notion of undue hardship when a

disabled person’s illness presents a risk of harm to others, as in the case

of unmanagable mental illness or communicable disease, but wisely

made the deliberate choice to exclude criteria that would address the

notion of risk of harm to oneself, lest this frustrate the purposes of

OSH Act.

Since all work has risks, all disabled people who work would,

20

by definition, face a risk of harm to oneself by working. As in the fetal

protection cases, a blanket determination that employers independently

may determine the risk undertaken by each individual without a

regulatory standard to guide them leaves two nagging questions at

each of the policy's logical extremes: (1) what minimum requirements

for demonstrating to the court that an exclusionary decision, in lieu of

alternative protections, is justified? and (2) which circumstances place

limits on the level of risk involved, to determine when an job’s hazards

and attendant risk goes too far?. Leaving such constructs at the

discretion of the employer would, by definition, make it possible for

employers to include a class of applicants among the disabled and then

draw job descriptions that feature undue burdens of risk, thereby

excluding them from the actual workforce and granting jobs only to

healthy applicants and healthy workers. This “harm to oneself”

affirmative defense therefore gives no blueprint for drawing a

distinction between impermissible harms that threaten workers’ health,

but must be corrected immediately through engineering controls, in

contrast to cases where the employer's policy can be justified, although

discriminatory in its effect. More importantly, this standard does not

place a clear limit on employer policies that may unfairly harm

workers, even though such outcomes may breach an employer

responsibility to protect workers.

IV. Conclusion.

A. EEOC’s “Threat of Harm to Oneself” Regulation Is

Ultra Vires and Therefore Invalid

When there is a high probability that an employee will suffer

significant injury or death in the near fiture because of his performance

of the job, there is nsk that the employee will miss work due to injury

with attendant unnecessary costs and disruption for all parties. As both

the Solicitor General and the Amicus ACOEM, noted, losses in

efficiency and productivity due to the disruption of its operations and

the need to find a replacement and retrain a new worker, Citing

Rosenstock and also Haig Neville, 40 Industrial Management,

Workplace accidents: they cost more than you think 7 (Jan.-Feb. 1998)

(workplace injuries have "immeasurable costs of lost production and

efficiency on a company-wide basis”)(Brief of Amicus ACOEM and

Brief of Solicitor General of the US).

The Ninth Circuit Court of Appeals correctly applied the

canon of statutory construction expressio unius est exclusio alterius.

21

The court reasoned that the statutory specification of a “direct threat"

defense for the risk of harm to others implicitly precludes a direct

threat defense for the risk of harm to self. See Pet. App. 6a-7a. The

court of appeals’ reliance on the expressio unius principle was

appropriate because the relevant statutory language is found in another

law, OSH Act. It is deceptively easy to overstate the EEOC’s

expertise in this narrow and carefully defined area of medicine as it is

currently practiced under USA law. Although it is correct that ADA's

legislative history does not foreclose a threat-to-self defense”, the true

and correct repository for administrative review of these decisions lies

with the Occupational Safety and Health Administration (OSHA) as

established along with two other agencies, the National Institute for

Occupational Safety and Health (NIOSH) and the Occupational Safety

and Health Review Commission (OSHRC). The Chevron decision

would support the rule of reason that Congress has clearly and directly

articulated its desire to delegate this authority not to EEOC but another

agency, OSHA, under the OSH Act, which was written two full

decades before the passage of ADA and was doubtlessly well known

to the sitting members of Congress.

Even though the precise solution to these problems is not

found within the four comers of the ADA, the US Congress has not

been silent about important questions of occupational health policy.

The legislature had no need to address this question when writing

ADA, having spoken before through the OSH Act. Thus; EEOC’s

over-reaching in this area of regulation exceeded the scope of its

statutory mandate and violates the delegation doctrine. Its rules that are

written beyond thescope of this authority are ultra vires and are, by

definition, invalid.

In Whitman, V. American Trucking Associations, Inc., 531

US. 457 (2001) the US Supreme Court confronted for the first time in

over half a century the issues surrounding delegation of authority by

the US Congress to administrative agencies Whitman, V. American

Trucking Associations, Inc., 531 U.s. 457 (2001). Jurisprudes

everywhere in the USA breathed a sign of relief as the US Supreme

Court held that Clean Air Act's delegation of authority to

Environmental Protection Agency (EPA) to set national ambient air

quality standards (NAAQS) at level "requisite to protect public health"

was not unconstitutional delegation of legislative power under the

Clean Air Act (CAA) Clean Air Act, 172(aX1XC), (aX2XD), 181(a),

as amended, 42 U.S.C.A." 7502(aX1)(C), (aX2KD), 7511(a) In 1990,

22

over 600 pages of Congressional legislation set forth amendments to

Clean Air Act. The complex provisions were criticized at the time of

their writing as an undue exercise of oversight capabilities by the US

Congress, who had authority but lacked the expertise to understand the

subtle but important ramifications of the legislative text as it attempted

to write law governing science. Significantly, the law was written at the

same time as ADA, demonstrating once again that had the US

Congress wished EEOC to exercise such medical and scientific

expertise as required to develop and enforce health standards at the

workplace, the US Congress would have done so. Such microscopic

scrutiny of Congressional regulations for health applying scientific

principles and the experience of environmental medicine under Clean

Air Act(CAA) Clean Air Act,’ 307(b), as amended, 42 U.S.C.A. '

7607(b ) upheld the Environmental Protection Agency's (EPA)

implementation policy for revised national ambient air quality

standards (NAAQS) for ozone in “nonattainment". Whitman shows

once again that the US Congress knew, understood and actually has

employed highly technical scientific language when drafting statutes if

it so desires for the statutes to address health issues. By 1990, Congress

had spoken about many questions of law, health policy environmental

health and occupational medicine.

This Court based this crucial finding on the principle that “in

a delegation challenge, the constitutional question is whether the statute

has delegated legislative power to the agency. Article I,’ 1, of the

Constitution vests "[aJll legislative Powers herein granted ... in a

Congress of the United States." . This Court repeatedly has said that

when Congress confers decisionmaking authority upon agencies

Congress must "lay down by legislative act an intelligible principle to

which the person or body authorized to [act] is directed to conform."

J.W. Hampton, Jr., & Co. v. United States, 276 U.S. 394, 409, (1928).

, see, ¢.g., Panama Refining Co. v. Ryan, 293 U.S. 388, (1935).

Whether the statute delegates legislative power is a question for the

courts. When invalidating the EEOC's regulations, the Ninth Circuit

stated that, when the term “direct threat" was used in the “various

committee reports” and "floor debate,” there was no explicit reference

to “threats to the disabled person himself." Pet. App. 7a-8a. “For

example," Senator Kennedy explained, "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." Ibid. But this does

23

not make occupational health sense. Fortunately, “The remarks of a

single legislator, even the sponsor, are not controlling in —

legislative history,” Solicitor General citing Chrysler Corp. v. Brown,

441 U.S. 281, 311 (1979). Short of speculative determination of

prospective risk, this analysis requires more detailed expertise in

medicine and occupational health than a EEOC is authorized to

possess.

It does not matter therefore that ADA did not expressly

address the special risks of disabled individuals, because Congress has

removed those questions from the realm of EEOC and into labor

relations between employers and individuals. Instead, OSHA has

enforcement authority to inspect and require modifications of working

conditions under OSH Act that will abate hazards and render a safer

and healthier workplace for all employees. EEOC regulations correctly

prohibit employment decisions based on “[g]eneralized fears about

risks from the employment environment.” 29 C.F.R. Pt. 1630, App. §

1630.2(r); see also 29 C.F.R. Pt. 1630, App. § 1630.15(a). But this

situation sits on the border between “generalized fear” and sound

medical insight, which will vary on a case-by-case basis involving an

assessment of job hazards, attendant risks and the natural history of

disease after diagnosis.

B. This Court Should Issue a Writ of Mandamus

Requiring the Secretary of Labor for OSHA to Promulgate

Regulations About Disabled Workers

OSH Act’s expressly written realm of expertise was

envisioned by the US Congress two decades before it wrote the ADA.

OS H Act requires that OSHA " ‘set the standard which most

adequately assures, to the extent feasible, on the basis of the best

available evidence, that no employee will suffer any impairment of

health’ "--which the Court upheld in Jndustrial Union Dept., AFL-CIO

v. American Petroleum Institute, 448 U.S. 607, 646, (1980), and which

then- Justice Rehnquist, in that case thought the statute violated the

nondelegation doctrine, see id., at 671, 100 S.Ct. 2844 (opinion

concurring in judgment) . The Occupational Safety and Health Act

prohibits employers from exposing employees to "recognized hazards"

that are likely to cause “death or serious physical harm,” and imposes

a “general duty” to furnish a safe workplace. 29 U.S.C. 654(a)(1).

OSHRC enforcement procedures also recognize the implicit limit on

employer responsibility in this regard, by offering the “Employee

24

Misconduct” defense to employers who demonstrate that their safety

and health rules were violated and by requiring that all employees

follow workplace safety and health rules in OSH Act Section 5 (B).

For this reason, it does not matter whether this Court finds that

respondent is a “qualified individual” under the ADA. As a threshold

matter, an individual poses a direct threat, the regulations require the

employer to consider "(1) [t]he duration of the risk; (2) [t]he nature and

severity of the potential harm; (3) [t]he likelihood that the potential

harm will occur; and (4) [t]he imminence of the potential harm.” 29

C.F.R. 1630.2(r). The regulations require that those factors be assessed

“based on a reasonable medical judgment that relies on the most

current medical knowledge and/or on the best available objective

evidence,” ibid., and “not on subjective perceptions, irrational fears,

patronizing attitudes, or stereotypes,” 29 C.F.R. Pt. 1630, App. §

1630.2(r). The regulations merely require an employer to conduct an

“individualized” and “objective” assessment of whether the individual's

performance of the job raises a “significant risk of substantial harm to

the health or safety of the individual." 29 C.F.R. 1630.2(r). EEOC

regulations are thus superficial and cannot reach the hard scientific

issues of in which OSHA, NIOSH and OSHRC have decades more

administrative expertise. The Ninth Circuit correctly held that the

ADA does not provide an affirmative defense permitting an employer

“to refuse to hire an applicant on the ground that the individual, while

posing no threat to the health or safety of other individuals in the

workplace, poses a direct threat to his own health or safety.” , finding

language of the ADA “dispositive” of that question. Congress, two

decades before the passage of ADA recognized that ensuring worker

safety reduces injuries and the resulting absences of critical employees.

Such over-reaching cannot be entitled to deference under Chevron

U.S.A. Inc_y. Natural Resources Defense Council, Inc., 467 U.S. 837,

842-845 (1984).

Public awareness of occupational health concerns aided by

stronger enforcement of OSH Act would effectively address these

issues. OSHA and its sister agencies were delegated authority by the

US Congress to develop expertise and promulgate health standards,

two decades before the passage of the ADA. Plaintiffs in

discrimination cases can enjoy financial rewards if they win, as they

did in Johnson Controls, which are not available to those who prevail

in OSHA enforcement actions. Although weak, the preventive powers

embedded in OSH Act remain the injured worker's best friend.

25

Furthermore, the OSH Act is the only statute that creates an agency

with the expertise to prevent harms prospectively. Even though the

OSH Act statute suffers from its almost castrating weakness of

is no individual right of action, only OSH Act can alter the course of

actual working conditions that are linked to injury and harm. To realize

approaches to occupational health in relation to other areas of

preventive policy and employment-based medicine, but does not

require rewriting our statutes as set forth by the US Congress or using

band-aid approaches to craft a saving clause where legislation

deliberately ends.

Understanding the pivotal role of occupational health laws

also requires educating labor organizations to understand that not every

harm is a form of discrimination. Applying OSH Act enforcement and

the training programs may ultimately have been a better use of legal

talents and of corporate resources, because only OSH Act and not

ADA can make employers implement the programs that prevent the

harms of carpal tunnel syndrome, excposures that uniquely confront

the most vulnerable and sensitive workers, or other workplace

exposures to risk of harm.

Employers have a legitimate interest in preventing workers

from taking jobs that have a high probability of causing injury to

themselves. Employers therefore have a mght to protect themselves

against avoidable workers’ compensation and health care-related costs

of retraining and substitution. But, there will be some cases for which

regulatory medical protection must be imposed in order to avoid a

slippery slope in which the susceptible or disabled would fee! obliged

to take any job, unable to refuse reassignment to a job that was

uniquely dangerous to them without losing their employment. The US

Congress has, in OSH Act and many other statutes, already struck the

balance favoring prospective measures that protect health when

confronted with these questions. The fact that few people like OSH

Act’s inartful statute does not render legitimate a set of regulations

from another agency that acts beyond the scope of its own delegated

authority making rules in OSHA's stead

CONCLUSION

The judgment of the court of appeals should be upheld

regarding its determination that EEOC regulations allowing an

26

affirmative defense to discrimination claims based on “threat of

harm"to oneself are invalid. A Writ of Mandamus is requested,

requiring the Secretary of Labor for OSHA to promulgate standards

that will address the needs of disabled individuals in the workplace.

Respectfully submitted.

pew & ounsel of RecordW

and Survival Project

The George Washington University

School of Public Health Services -

The Warwick Building Washington, D.C. 20530-0001

phone:856 428 0605

CERTIFICATE OF SERVICE

A true and valid copy of this Brief Amicus Curiae has been

served by certified mail to all parties in this proceeding

llise L Feitshans JD and ScM Cownsel of Record

27

Appendix 1. Text of the ACOEM Code of Ethics

This code establishes standards of professional ethical conduct

with which each member of the American College of Occupational and

Environmental Medicine (ACOEM) is expected to comply. These

standards are intended to guide occupational and environmental

medicine physicians in their relationships with the individuals they

serve, employers and workers representatives, colleagues in the health

professions, the public, and all levels of government including the

Physicians should:

1. Accord the highest priority to the health and safety of individuals in

both the workplace and the environment.

2. Practice on scientific basis with integrity and strive to acquire and

strive to acquire and maintain adequate knowledge and expertise upon

which to render professional service.

3. Relate honestly and ethically in all professional relationships.

4. Strive to expand and disseminate medical knowledge and participate

in ethical research efforts as appropriate.

5. Keep confidential all individual medical information, releasing such

information only when required by law or overriding public health

considerations, or to other physicians according to accepted medical

practice, or to others at the request of the individual.

6. Recognize that employers may be entitled to counsel about an

individuals medical work fitness, but not to diagnoses or specific

details, except in compliance with laws and regulations.

7. Communicate to individuals and/or groups and significant

observations and recommendations concerning their health or safety.

8.Recognize those medical impairments in oneself and others,

interfere with ones ability to follow the above principles, and take

appropriate measures.