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

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URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385014_0454%3A25

## Record

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

## Text

.

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.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385014_0454%3A25. Public record. Not legal advice.