Amicus Curiae Brief — Chevron USA Inc. v. Echazabal

D [ Suprem: Court, 11S | 7

* FILE O

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FEB 12

No. 00-1406

In the | — 1

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 AMICUS CURIAE OF THE

NATIONAL EMPLOYMENT LAWYERS ASSOCIATION

IN SUPPORT OF RESPONDENT

JANIS E. EGGLESTON

Senior Staff Attorney

NATIONAL EMPLOYMENT

LAWYERS ASSOCIATION

44 Montgomery Street

Suite 2080

San Francisco, CA 94104

(415) 296-7629

GARY PHELAN

Counsel of Record

TAMMY MARZIGLIANO

KLEBANOFF & PHELAN, P.C.

433 South Main Street

Suite 117

West Hartford, CT 06110

(860) 313-5005

Attorneys for Amicus Curiae

NATIONAL EMPLOYMENT LAWYERS ASSOCIATION

Midwest Law Printing Company / Photex — Chicago — (312) 321-0220

~ [BEST AVAILABLE COPY}

i

TABLE OF CONTENTS

PAGE

. 6-0 eon kncadoecenssanceuceaeaes iii

Emtewest of „„ „„ „„ „„ „ 1

, 2

e 4 a cana ncnnecenaussencesndes 4

n . ⅛ 6

I. The ADA Provides Employees With Disabilities

With The Right To Decide For Themselves

What Risks To Undertake In The Workplace 6

A. The EEOC’s Extension Of The “Direct

Threat” Defense To Threats To Self Is Pro-

hibited By The Statute Upon Which The

. 6 cbc Koc ckbenctoceccecs 6

B. The EEOC’s Extension Of The “Direct

Threat” Defense To Include Threats To Self

Is Not Entitled To Deference.............. 10

C. Congress Omitted The “Threat To Self”

Language From The “Direct Threat” De-

1E 13

II. Mario Echazabal Is A Qualified Individual

With A Disability” Under The ADA ........... 15

A. The ADA Does Not Require Disabled Em-

ployees to Show That They Are Able to

Perform Their Jobs Without Posing A Risk

of Harm to Themselvfe s 15

ii

B. The Employer Carries The Burden Of Proof

Under the ADA’s Direct Threat” Defense ... 17

III. Limiting The Ada’s “Direct Threat” Defense To

Threats To The Safety Or Health Of Others

Will Not Nullify Workplace Safety Laws ....... 19

IV. An Employer Is Not Immune From Liability Un-

der The ADA’s “Direct Threat” Defense Merely

Because It Relied On A Doctor's Advice 27

ee ed. “..w;. eee et. 29

TABLE OF AUTHORITIES

Federal Cases PAGE(S)

Albertson’s, Inc. v. Kirkenburg,

527 U.S. 555 (199 90ö0õ: p ccc cee ee eee 25

Andrews v. State of Ohio,

104 F.3d 803 (6th Cir. 199777777 13

Bentivegna v. U.S. Department of Labor,

694 F. ad 619 (9th Cir. 1982ꝶ/ꝝ22·2 19

Bey v. Bolger,

540 F. Supp. 910 (E.D. Pa. 1982) ............... 13

Bragdon v. Abbott,

524 U.S. 624(1998) ..............05.. 12, 13, 19, 28

Browning v. Liberty Mutual Insurance Co.,

178 F.3d 1043 (8th Cir. 1999999999999 15

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

Defense Council, Inc., 467 U.S. 837 (198) 10

Chickasaw Nation v. United States,

eres eee ee ese 14

Cleveland v. Policy Management Systems Corp.,

reer 1

Dothard v. Rawlinson,

reer oe eee 4, 7, 8, 9

EEOC v. Chrysler Corp.,

917 F. Supp. 1164 (E. D. Mich. 1996) ......... 18, 28

iv

EEOC v. Kinney Shoe Corp.,

917 F. Supp. 419 (W.D. Va. 1996),

aff'd sub nom., Martinson v. Kinney

Shoe Corp., 104 F.3d 683 (4th Cir. 1997) ......... 23

EEOC v. Texas Bus Lines,

923 F. Supp. 965 (S.D. Tex. 1996)............... 27

EEOC v. Waffle House, Inc.,

No. 99-1823 (U.S., Jan. 15, 200 2·/72?:ü 1

Frontiero v. Richardson,

1 cn ccccdcceccsepeoedbawences 7

Gile v. United Air Lines, Inc.,

95 F.3d 492 (7th Cir. 1990 13

Helen L. v. DiDario,

46 F.3d 325 (3d Cir. 1995) .... itt. 14

International Union, UAW v. Johnson

Controls, Inc., 886 F.2d 871

(7th Cir. 1989), rev'd, 499 U.S.

DEED concesent . 17

International Union, UAW v. Johnson

Controls, Inc., 499 U.S. 187

1—C : 4, 8, 9, 17, 22, 23, 25

Kalskett v. Larson Manufacturing Co.

of Iowa, Inc., 146 F. Supp. 2d 961

Gare 13, 14

Kohnke v. Delta Airlines, Inc.,

932 F. Supp. 1110 (N. D. Ill. 1996) ........ 11, 14, 15

Vv

Laurin v. Providence Hospital,

150 F.3d 52 (Ist Cir.1998) .................. 17, 18

Lawson v. Suwannee Fruit and Steamship Co.,

e eee 22

Montolete v. Bolger,

767 F.3d 1416 (9th Cir. 1985) ................. . 13

Muller v. The State of Oregon,

F <ntncedudducvsechevsecss< 6, 7

Nunes v. Wal-Mart Stores,

164 F.3d 1243, 1248 (9th Cir. 1999) ............. 23

Pushkin v. Regents of University of Colorado,

658 F.2d 1372 (10th Cir. 1981) .................. 6

Reeves v. Sanderson Plumbing Products,

ee ! eee 1

Rizzo v. Children’s World Learning Centers, Inc.,

hene. 18

School Board of Nassau County, Florida v. Arline,

, occa ceegdeenceboes 12, 13

State Cases :

Izzo v. Meriden-Wallingford Hospital,

676 A.2d 857 (Conn. 1996).................005. 22

People v. Pymm,

76 N.Y.2d 511, 563 N.E.2d 1(1990) .......... 25, 26

vi

State v. Industrial Accident Commission,

306 P.2d 64 (Cal. Dist. Ct. App. 1957) ........... 22

Statutes

AMERICANS WITH DISABILITIES ACT

eae 1

Ger. bee 9

rr e e 10, 23

n gos ce dcnnennecensadesese 16

ee 15

e 18

r 5, 15

ö 4. 18

r 10, 14, 18

SE ee 9

Ge 11

r s 13

LONG-SHORE AND HARBOR COMPENSATION ACT

33 U.S.C. $§901-50 .. 1... ce eee eee eens 23

vii

OCCUPATIONAL SAFETY AND HEALTH ACT OF 1970

r Adds ccc 24

e 25

REHABILITATION ACT OF 1973

r 13, 14

. 13, 14

TITLE VII OF THE CIVIL RIGHTS ACT OF 1964

42 U.S.C. §2000e et S ũ . eee 4,7,8

Regulations

SPE dogenss’s snencsacdibcdésbevecess 12

Dane... — 24

eee eee 15

rere ses sees eee 15

. SE Sdccdcccecsccccesscescsicss 15

. cevccedoddccseeceeeerceces 15

ane. 10, 23, 28

SED cob cn cdictccecccdsncccceccs 25

Legislative History

Americans With Disabilities Act: Hearings

Before The House Committee On Small

Business, 101st Cong. 2d Sess. 126(1990)......... 9

H.R. Rep. No. 485, pt. 2, 101st Cong.,

2d Sens. 41 (19900::: : 10

H.R. Rep. No. 485, pt. 2, 101st Cong.,

2d Sess. 74 (19000 )!ů)õ cece ewer eeeeeees 10

H.R. Rep. No. 485, pt. 3, 101st Cong.,

2d Sess. 31 (1900)... 1. cece cece cece eee eeeees 21

H.R. Rep. No. 485, pt. 3, 101st Cong.

2d Seas. 48 (1990) )̊ͥ)))) eee e ee eees 9

H.R. Conf. Rep. No. 546, 101st Cong.,

2d Sess. 60 (19900 ⸗):ʒʒ eee eee e eee eeee 18

Other Authorities

Peter David Blank, Employment, Disability

and the Americans with Disabilities Act

(BOOB) ˖õ 46 19

D. Dobbs, The Law of Torts (2000) 77 We 24

EEOC Enforcement Guidance: Workers

Compensation and the ADA. Equal

Employment Opportunity Commission 2

(Sept. 3, 1998)))) )

John Hockenberry, Moving Violations: War

Zones, Wheelchairs and Declarations of

, k 20

Arthur Larson, Larson’s Workers Compensation

, clscecenénséceeses 20

Katelyn S. Oldham, Comment: The Implications

of Echazabal v. Chevron, U.S.A., Inc. for

Employers and for the Administration of

Workers Compensation and the Occupational

Safety and Health Act, 80 Or. L. Rev. 327

bees bbcecceecsecees 23, 24, 25

Gary Phelan and Janet Bond Arterton,

Disability Discrimination in the Workplace

(West Group 1992-2001) .................. 8, 9, 14

Restatement (Second) of Torts 496A (19650 24

Restatement (Second) of Torts 496B (1965) .......... 24

_ Restatement (Second) of Torts 496D (1965) .......... 24

Scott E. Schaffer, Note, Echazabal v. Chevron,

Inc.: Conquering the Final Frontier of

Paternalistic Employment Practices,

33 Conn. L. Rev. 1441(2001) ...... 14, 19, 20, 22, 24

Joseph Shapiro, No Pity: People with Disabilities

Forging a New Civil Rights Movement (1993) ...... 9

Technical Assistance Manual on the Employment

Provisions (Title I) of the Americans with

Disabilities Act, Equal Employment

Opportunity Commission (Jan. 26, 1992)......... 21

1

INTEREST OF AMICUS CURIAE'

The National Employment Lawyers Association (“NELA”)

is a voluntary membership organization of more than 3,500

attorney members who regularly represent employees in

labor, employment and civil rights disputes. NELA is the

country’s only professional membership organization of

lawyers who represent employees in discrimination, wrong-

ful discharge, employee benefits and other employment-

related matters.

As part of its advocacy efforts, NELA regularly supports

precedent setting litigation affecting the rights of individu-

als in the workplace. NELA has filed numerous amicus

curiae briefs before the U.S. Supreme Court and the federal

appellate and district courts regarding the proper interpre-

tation and application of employment discrimination laws

to ensure that the laws are fully enforced and that the

rights of workers are fully protected. Some of the more

recent cases before this Court include: EEOC v. Waffle

House, Inc. No. 99-1823 (U.S. Jan. 15, 2002); Reeves v.

Sanderson Plumbing Products, 530 U.S. 133 (2000) and

Cleveland v. Policy Management Systems Corp., 526 U.S.

795 (1999).

NELA members have brought numerous cases under the

Americans with Disabilities Act, 42 U.S.C. §12101 et seq.

(“ADA”). NELA members have also represented thousands

of individuals in this country who are victims of employ-

ment discrimination based on disability status. One of the

primary purposes of NELA is to represent, protect, and

The consents of the parties have been filed with the Clerk of

the Court. Pursuant to Supreme Court Rule 37.6 Amicus

Curiae NELA states that no counsel for any party authored

this brief in whole or in part and that no party or entity other

than amicus curiae, its members, or counsel made a monetary

contribution to the preparation or submission of this brief.

defend the inte ests of employees involved in workplace

disputes. NELA has a compelling interest in ensuring that

the goals of the ADA are protected and fully realized.

STATEMENT OF THE CASE

Mario Echazabal worked for a variety of independent

maintenance contractors at a Chevron, U.S.A. refinery in El

Segundo, California between 1972 and 1996. J. A. 117.

Echazabal worked steadily for approximately 12 to 13 years

during that time period in the coker unit of the Chevron

refinery. J. A. 117. In 1992, Echazabal applied for a job with

Chevron in the refinery’s coker unit. J. A. 117. Chevron

made Echazabal a job offer that was conditioned on the

results of a physical examination. J. A. 118. A company

doctor who performed the examination concluded that

Echazabal had an uncorrectable liver abnormality that

might be damaged by exposure to chemicals or solvents in

the coker unit. J. A. 197. Based solely on these examination

results, Chevron withdrew its job offer to Echazabal. J. A.

197.

Although Echazabal was not hired by Chevron, he con-

tinued to work for one of Chevron’s contractors in the coker

unit. J. A. 197. Chevron made no attempt to remove Echa-

zabal from the coker unit while he was employed by one of

its contractors. J. A. 197.

In light of the results of his pre-employment physical at

Chevron, Echazabal sought medical treatment. J. A. 197.

He was eventually diagnosed with asymptomatic, chronic

active Hepatitis C. J. A. 197. Echazabal told each physician

with whom he treated about the type of work he did at the

refinery. J. A. 197. However, none of those physicians told

him that he should stop working at the refinery due to his

condition. J. A. 197.

After Echazabal applied again to Chevron in 1995 Chev-

ron extended him another offer of employment that was

conditioned on the results of a physical examination. J. A.

55-56. Chevron again rescinded its job offer to Echazabal

based on a second physical examination by a new physician

for Chevron because there was a risk that Echazabal’s liver

would be damaged if he worked in the coker unit. J. A. 198.

The company physician reached his conclusion even without

consulting anyone in the refinery’s industrial hygiene de-

partment and did not know either the specific chemicals

that were present or at what levels they were present in the

coker unit. J. A. 131-33, 139. Rather than allow Echazabal

to continue to work for the contractor in the refinery’s coker

unit, however, Chevron’s doctor wrote to the contractor and

demanded that Echazabal be removed from the refinery or

placed in a position that eliminated his exposure to solvents

or chemicals. J. A. 198. The contractor removed Echazabal

from the refinery and, as a result, his career of over 20

years at the Chevron refinery abruptly ended. J. A. 198.

Echazabal filed suit against both Chevron and the main-

tenance contractor that terminated him. J. A. 198. The dis-

trict court granted Chevron’s motion for summary judgment

under the ADA and related state and federal claims. J. A.

171-95. The U. S. Court of Appeals for the Ninth Circuit re-

versed the grant of summary judgment in favor of Chevron

in a 2-1 decision. J. A. 196-211. The Court of Appeals con-

cluded that an employer may not refuse to hire an individ-

ual with a disability based on the possibility that the in-

dividual may suffer harm in the employment position. J. A.

207-09.

Chevron sought review by this Court and its request was

granted on October 29, 2001. J. A. 222.

4

SUMMARY OF ARGUMENT

I. The Court of Appeals decision to invalidate the EEOC’s

extension of the “direct threat” defense to “threats to self”

should be upheld. Title I of the ADA is patterned after Title

VII of the Civil Rights Act of 1964, 42 U.S.C. §2000e. In

cases involving sex and pregnancy discrimination this

Court has held that it is up to the employee herself to

decide whether to accept a workplace safety risk. Dothard

v. Rawlinson, 433 U.S. 321, 336-37 (1977); International

Union, UAW v. Johnson Controls, Inc., 499 U.S. 187, 202-04

(1991). An EEOC regulation which takes away the same

choice from persons with disabilities conflicts with Con-

gress’ recognition when it adopted the ADA that overprotec-

tive rules and policies create artificial barriers that the

statute was intended to remove.

The EEOC’s extension of the direct threat defense to

include threats to self is not entitled to deference. The ADA

defines “direct threat” as a “significant risk to the health or

safety of others that cannot be eliminated by reasonable

accommodations.” 42 U.S.C. §12113. Congress clearly did

not want the ADA’s direct threat defense to include threats

to self and, as a result, there is no need to defer to the

EEOC’s regulations for guidance. However, the ADA’s

language and its legislative history clearly demonstrate

that Congress wanted to limit the direct threat defense to

threats to others. Congress’ decision to omit the “threat

to self” language that had emerged from some pre-ADA

Rehabilitation Act decisions demonstrates that it did not

intend to incorporate that language into the ADA. The

ADA’s repeated description of the direct threat defense to

apply only to threats to others demonstrates that Congress

did not commit a drafting error when it omitted from the

statute threats to the individual himself or herself.

II. Mario Echazabal is a “qualified individual with a

disability” because he could perform the “essential func-

5

tions” of the employment position in question. 42 U.S.C.

§12112(g). For over two decades Echazabal performed the

same type of work in the coker unit of Chevron. Chevron

cannot engraft the “threat to self” requirement onto the

definition of “qualified” by arguing that the individual must

be able to perform the employment position’s essential func-

tions without posing a risk to oneself.

The ADA’s direct threat qualification standard is an af-

firmative defense for which the employers carry the burden

of proof. Therefore, the ADA cannot be interpreted in a

manner that will shift that burden of proof to the employee

by requiring the employee to prove that he or she is not a

direct threat to himself or others.

III. Interpreting the ADA’s direct threat defense in accor-

dance with Congress’ desire to limit its application to

threats to the safety or health of others will not nullify

workplace safety rules. Every state has established work-

er's compensation programs to pay the costs related to the

injuries which some workers inevitably suffer. The EEOC

has stated that an employer may not refuse to hire an in-

dividual with a disability due to the possibility that the

individual poses an increased risk of filing a worker's

compensation claim. States have also routinely adopted

“second-injury funds” to remove the financial disincentives

to hiring workers with disabilities. The petitioners’ concerns

about potential administrative, civil and criminal liability

are remote and can be addressed by disclosing known

workplace health and safety risks to its employees.

IV. If the Court holds the ADA’s direct threat defense ex-

tends to threats to self, the Court should not conclude that

an employer can avoid all liability under the ADA’s direct

threat defense by relying on the advice of the company’s

doctor. Doctors’ opinions may be based on their own stereo-

typical beliefs and fears about people with disabilities, lack

of expertise or incomplete information.

ARGUMENT

THE ADA PROVIDES EMPLOYEES WITH DISABILI-

sawn a I — on” DECIDE FOR THEM.

WOREPLAGH RISKS UNDERTAKE IN THE

A. The EEOC’s Extension Of The “Direct Threat”

Defense To Threats To Self Is Prohibited By The

Statute Upon Which The ADA Was Patterned

In Pushkin v. Regents of University of Colorado, 658 F.2d

1372 (10th Cir. 1981), the Tenth Circuit Court of Appeals

observed that discrimination on the basis of disability “often

occurs under the guise of extending a helping hand or a

mistaken restrictive belief as to the limitations of [persons

with disabilities).” Jd. at 1385. However, persons with dis-

abilities have not been the first group in our society to be

subjected to discriminatory treatment under the guise of

good intentions. Women were historically excluded from a

variety of opportunities in the workplace through protective

legislation or policies. In Muller v. The State of Oregon, 208

U.S. 412 (1908) for example, the Supreme Court upheld a

statute that limited women to working ten (10) hours a day,

reasoning:

That women’s physical structure and the performance

of maternal functions place her at a disadvantage in the

struggle for subsistence is obvious. This is especially

true when the burdens of motherhood are upon her.

Even when they are not, by abundant testimony of the

medical fraternity, continuance for a long time on her

feet at work, repeating this from day to day, tends to

injurious effects upon the body, and as healthy mothers

are essential to vigorous offspring, the physical well-

being of women becomes an object of public interest and

care in order to preserve the strength and vigor of the

race.

Id. at 421.

7

Muller observed that “in the struggle for subsistence she

is not an equal competitor with her brother.” Jd. at 422. The

Court concluded that she is properly placed in a class

by herself, and legislation designed for her protection may

be sustained, even when like legislation is not necessary for

men and could not be sustained.” Id.

In Frontiero v. Richardson, 411 U.S. 677 (1973), the Su-

preme Court observed “the position of women in America

has improved markedly in recent decades.” Jd. at 685. The

principal legislative catalyst for that improvement came

with Congress’ declaration in Title VII of the Civil Rights

Act of 1964, 42. U.S.C. §2000e-2(a) (“Title VII") that em-

ployers may not discriminate against an individual based

upon sex. Nevertheless, the Frontiero Court recognized that

“(t}here can be no doubt that our nation has a long and

unfortunate history of sex discrimination. Traditionally,

such discrimination was rationalized by an attitude of

‘romantic paternalism’ that, in practical effect, put women

not on a pedestal, but in a cage.” Jd. at 684.

The first clash between Title VII's prohibition of sex

discrimination in the workplace and sex-based protection

policies occurred in Dothard v. Rawlinson, 433 U.S. 321

(1977). Dianne Rawlinson was not hired as a prison guard

by the State of Alabama because she could not meet the

statutory minimum 120-pound weight requirement. /d. at

323-24. While the suit was pending Alabama implemented

a regulation prohibiting women from working as prison

guards where they would be in “contact” positions in con-

tinued close physical proximity to inmates. Id. at 325. The

Supreme Court observed that the conditions of confinement

in the state’s prisons were characterized by “rampant vio-

lence” and were a “peculiarly inhospitable one for human

beings of whatever sex.” Id. at 334. The Court concluded,

however, that the possibility that the contact position might

j the female guard herself was irrelevant, reason-

ing that liln the usual case, the argument that a particular

job is too dangerous for women ma appropriately

the purpese ef Title Vil to allow che ——

make that choice for herself.” Jd. at 335 (citation omitted).

However, the Court held that being male was a bona fide

occupational qualification (“BFOQ”) for the contact guard

position because of the likelihood that inmates would

assault a woman because she was a woman and, therefore

threatened the control of the jail and protection of its in.

mates and other security personnel. Id. at 336-337. Accord-

ing to Dothard, Imlore is at stake in this case, however

than an individual woman's decision to weigh and accept

the risks of employment in a ‘contact’ position in a maxi-

mum-security male prison.” 433 U.S. at 337. Therefore, the

Court clearly distinguished between the risks posed to the

female security guard herself from the risk posed to others.

argued that its fetal protection policy fell within the scope

of the “safety exception” to Title VII's BFOQ defense. Id. at

202. The Supreme Court disagreed, reasoning that the

BFOQ safety exception “is limited to instances in which sex

or pregnancy actually interferes with the employee's ability

to perform the job.” Jd. at 204. According to the Court, the

employer's fetal protection policy fell outside the scope of

tinctions based upon sex when such distinctions “relate to

(the) ability to perform the duties of the job.” Johnson

Controls, 499 U.S. at 204

Title I of the ADA is patterned after Title VIJ. See Gary

Phelan & Janet Bond Arterton, Disability Discrimination

in the Workplace, §7:09, at 24 (West Group 1992-2001)

(“Phelan, Disability Discrimination”). In fact, Title I of the

ADA provides that Title VII's powers, remedies and proce-

dures are available under Title I. 42 U.S.C. §12117(a). The

ADA’s legislative history also provides that Title I was

disabilities that are parallel to those available to minorities

and women.” H.R Rep. No. 485, pt. 3, 101st Cong., 2d Sess,

48 (1990). In light of Dothard and Johnson Controls, an

employer could not refuse to hire a female applicant be-

cause the job posed a risk to the woman’s safety. If the ADA

is to provide people with disabilities with the same civil

rights protections provided to women, an employer should

not be given the right to refuse to hire an applicant with a

disability even though the job poses a risk to only the

individual’s safety.

The artificial barriers created by overprotective policies

have historically been at least as much of an impediment

for people with disabilities as they have been for women.’

The preamble to the ADA stated that Congress found that

crimination through “overprotective rules and policies.” 42

U.S.C. §12101(aX5). The House Report for the Committee

on Education also acknowledged that t Ihe discriminatory

? Ed Roberts, the primary architect of the disability rights

movement that began in the 196008, looked to how women’s

rights advocates challenged stereotypes of them as the

“weaker, milder sex” as a model to challenge stereotypes about

people with disabilities. See Joseph Shapiro, No Pity: People

with Disabilities Forging a New Civil Rights Movement, 47

(1993); see ol, e. g., Americans with Disabilities Act: Hearings

Before The House Committee on Small Business, 101st Cong.

2d Sess. 126 (1990) (testimony of Arlene Mayerson) (Ihle

women, disabled people have identified ‘paternalism as a

major obstacle to economic and social advancement”).

10

nature of policies and practices that exclude and segregate

disabled people has been obscured by the unchallenged

equation of disability with incapacity and by the gloss of

‘good intentions’... H.R. Rep. No. 485, pt. 2, 101st Cong.,

2d Sess. 41 (1990). Those sentiments are echoed by Con-

gress’ recognition that:

Employment decisions must not be based on paternalis-

tic views about what is best for a person with a disabil-

ity. Paternalism is perhaps the most pervasive form of

discrimination for people with disabilities and has been

a major barrier to such individuals.

H.R. Rep. No. 485, pt. 2, 101st Cong., 2d Sess. 74 (1990).

B. The EEOC’s Extension Of The “Direct Threat” De-

fense To Include Threats To Self Is Not Entitled

To Deference

The ADA permits employers to require, as a qualification

standard, that an individual not pose a direct threat to the

health or safety of other individuals in the workplace. 42

U.S.C. §12113(b). The ADA defines “direct threat” as a “sig-

nificant risk to the health or safety of others that cannot

be eliminated by reasonable accommodations.” 42 U.S.C.

§12111(3). In its regulations implementing the ADA, the

EEOC expands the direct threat definition to state that

“(t]he term ‘qualification standard’ may include a require-

ment that an individual shall not pose a direct threat to the

health or safety of the individual or others in the work-

place.” 29 C.F.R. §1630.2(r) (emphasis added).

To determine whether the EEOC’s regulatory provision is

valid, the Court must: (1) determine whether it must defer

to the EEOC’s construction, and (2) if so, determine what

level of deference the EEOC’s determination is due. J. A.

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

Council, Inc., 467 U.S. 837 (1984), the Court observed that

11

Ailf the intent of Congress is clear, that is the end of the

matter, for the court, as well as the agency, must give effect

to the unambiguously expressed intent of Congress.” Jd. at

842-43. It is only when the statute is silent or ambiguous

with respect to a specific issue that a court must consider

whether to defer to an agency’s interpretation of a statute.

Id. at 843.

The ADA’s direct threat to safety defense plainly ex-

presses Congress’ intent to limit its application only to

threats to other individuals. There is no ambiguity as to

whether the direct threat defense applied to threats to self.

J. A. 205-07. The Ninth Circuit observed that “(t]he term

‘direct threat’ is used hundreds of times throughout the

ADA’s legislative history . . land! in nearly every instance

in which the term appears, it is accompanied by a reference

to the threats to ‘others’ or to ‘other individuals in the

workplace.’ Not once is the term accompanied by a reference

to threats to the disabled person himself.” J. A. 202. In con-

cluding that the ADA direct threat defense did not extend

to threats to self, the court in Kohnke v. Delta Airlines, Inc.,

932 F. Supp. 1110 (N.D. III. 1996) also reasoned that the

“House Judiciary Report mentions threat or risk ‘to other

individuals’ or ‘to others’ nine times, without once mention-

ing threat or risk to the disabled person himself. This pat-

tern is apparent throughout the legislative history of the

ADA.” Id. at 1112 (citation omitted). Because Congress’

intent is clear, there is no need to determine what level of

deference is due to the EEOC’s decision to engraft threats

to an individual’s own safety onto the direct threat defense.

Title III of the ADA’s Public Accommodation provisions

also contains a direct threat to safety defense and defines

the term as a “significant risk to the health or safety of

others that cannot be eliminated by a modification of

policies, practices or procedures or by the provision of

auxiliary aids or services.” 42 U.S.C. §12182(bX3). The De-

partment of Justice (“DOJ”), which is the agency empow-

12

ered to issue regulations to enforce Title III of ADA’s Public

Accommodation provisions, confirms that the EEOC’s ex-

panded definition of the direct threat defense to include

threats to self is invalid. The DOJ’s regulations governing

the Public Accommodation provision’s direct threat to safety

defense provides that it applies to a direct threat to the

health or safety of others but makes no reference what-

soever to threats to the individual himself or herself. 28

C.F.R. §36.208. (emphasis added).

This Court’s decision in School Board of Nassau County,

Florida v. Arline, 480 U.S. 273 (1987) bolsters the conclu-

sion that the direct threat defense was never intended to

extend to threats to self. Arline held that in determining

whether an individual suffering from a communicable

disease was “otherwise qualified” under the Federal Re-

habilitation Act, there must be an individualized inquiry to

determine whether the individual poses a “significant risk”

to the health or safety of others. 480 U.S. at 288. Such an

inquiry is essential, according to Arline:

To achieve the goal of protecting handicapped individu-

als from deprivations based on prejudices, stereotypes

or unfounded fear, while giving appropriate weight to

such legitimate concerns of [employers] as avoiding

exposing others to significant health or safety risks.

Id. (emphasis added). This Court also observed in Bragdon

v. Abbott, 524 U.S. 624 (1998) that the ADA’s direct threat

defense resulted from Arline’s recognition “of the impor-

tance of prohibiting discrimination against individuals with

disabilities while protecting others from significant health

and safety risks... Id. at 649. Therefore, the Arline

decision—which the ADA’s direct threat defense was in-

tended to codify—made no reference whatsoever to threats

to the disabled employee’s own health or safety.

13

C. Congress Omitted The “Threat To Self” Language

From The “Direct Threat” Defense

Prior to the passage of the ADA in 1990 some courts

interpreted Sections 501 and 504 of the Rehabilitation Act

(29 U.S.C. §791(g), 794(d)) to include a threat to the health

or safety of the individual as well as to other individuals as

a qualification standard. See, e.g., Montolete v. Bolger, 767

F.2d 1416, 1421-22 (9th Cir. 1985); Bey v. Bolger 540

F. Supp. 910, 926 (E. D. Pa. 1982). Courts have routinely

looked to decisions under the Federal Rehabilitation Act for

guidance when interpreting the ADA. See, e. g., Bragdon,

524 U.S. at 631-32; Andrews v. State of Ohio, 104 F.3d 803,

807 (6th Cir. 1997). However, courts have only looked to the

Rehabilitation Act decisions “when the language of the two

statutes are substantially similar.” Gile v. United Air Lines,

Inc., 95 F.3d 492, 496 (7th Cir. 1996). Rehabilitation Act

court decisions incorporating threats to self into a direct

threat defense cannot be relied upon where, as here, the

ADA statutory language rejects both the EEOC’s applicable

regulation and the relevant Rehabilitation Act case law. See

42 U.S.C. §12201(a).

Case law interpreting “direct threat” to include threats to

self is not “substantially similar” to the ADA’s clear and

unambiguous limitation of the definition of direct threat to

threats to others. The ADA’s repeated description of the

direct threat defense to apply only to threats to others

precludes any chance “that Congress committed a drafting

error when it omitted from the defense threats to the

disabled individual himself.” J. A. 201; see also, Kalskett v.

Larson Manufacturing Co. of Iowa, Inc., 146 F. Supp. 2d

961, 982 (N.D. Iowa 2001). If Congress had intended to

extend the direct threat defense to threats to self it could

very easily have done so. However, Congress made no effort

whatsoever to codify any of the pre-ADA Rehabilitation Act

decisions holding that a direct threat to the individual’s

own health or safety could render the individual unquali-

14

fied. Scott E. Schaffer, Note, Echazabal v. Chevron, Inc.:

Conquering the Final Frontier of Paternalistic Employment

Practices, 33 Conn. L. Rev. 1441, 1450 (2001) (“Schaffer, Pa-

ternalistic Employment Practices”). When Congress amend-

ed the Rehabilitation Act in 1992 to provide that the ADA’s

standards shall be applied when interpreting the Rehabili-

tation Act, it still did not attempt to incorporate either the

pre-ADA case law or the EEOC’s regulations adopted in

July 1991 defining direct threat to include threats to self.

See 29 U.S.C. §§791(g), 794(d).

The passage of the Federal Rehabilitation Act of 1973

reflected Congress’ recognition of disability discrimination

as a federal civil rights issue and transformed disability

public policy in America. Phelan, Disability Discrimination,

§1:03, at 2. However, the statute’s “shortcomings and de-

ficiencies” soon became apparent, including “erratic judicial

interpretations.” Helen L. v. DiDario, 46 F.3d 325, 331 (3d

Cir. 1995) (citations omitted). Congress’ realization that

current disability discrimination laws were inadequate was

one of the factors that led to the passage of the ADA. See id.

Despite court decisions prior to 1990 holding that threats to

an individual with a disability’s own health or safety would

render a person unqualified, Congress chose to limit the

definition of the direct threat defense to threats to other

individuals. 42 U.S.C. §12113(b).

In Chickasaw Nation v. United States, 122 S. Ct. 528

(2001) this Court stated that it “ordinarily will not assume

that Congress intended to enact statutory language that it

earlier discarded in favor of other language.” Id. at 534

(internal quotation marks omitted). The language of the

ADA’s direct threat defense, along with the statute’s leg-

islative history, clearly demonstrate that it did not intend

that the statute or agency regulations should be interpreted

to disqualify an individual with a disability from an em-

ployment position because of a risk to only the individual

herself. J. A. 212; Kalskett, 146 F. Supp. 2d at 982; Kohnke

15

v. Delta Airlines, Inc., 932 F. Supp. 1110, 1112 (N. D. III.

1996). Rather, Congress omission of the threat to self“

language demonstrates that “[clonscious of the history of

paternalistic rules that have often excluded individuals

from the workplace, Congress concluded that disabled per-

sons should be afforded the opportunity to decide for

themselves what risks to undertake.” J. A. 212.

Il. MARIO ECHAZABAL IS A “QUALIFIED INDIVIDUAL

WITH A DISABILITY” UNDER THE ADA

A. The ADA Does Not Require Disabled Employees

To Show That They Are Able To Perform Their

Jobs Without Posing A Risk Of Harm To Them-

selves

Title I of the ADA prohibits employers from discriminat-

ing against a “qualified individual with a disability.” 42

U.S.C. §12112(a). To be considered “qualified” under the

ADA the individual must be able to “perform the essential

functions of the employment position that the individual

holds or desires.” 42 U.S.C. §12112(g).

In its regulations the EEOC states that the term “essen-

tial functions” refers to the “fundamental” duties of the em-

ployment position and excludes the “marginal functions” of

the position. 29 C. F. R. §1630.2(n\(1). The determination of

whether the individual can perform the “essential func-

tions” of the job is made at the time the employment de-

cision is made. Browning v. Liberty Mutual Insurance Co.,

178 F.3d 1043, 1047 (8th Cir. 1999); 29 C.F.R. Pt. 1630,

App. §1630.2(n). A job duty may be essential because “the

reason the position exists is to perform that function” or

“the function may be highly specialized so that the incum-

bent in the position is hired for his or her expertise or

ability to perform that particular function.” 29 C.F.R.

881630. 2m), 1630.2(i),(iii).

16

The EEOC’s regulations provide that if an employer has

prepared a written job description as to what job functions

it considers to be essential, the description should be con-

sidered evidence of the essential functions of the job. 42

U.S.C. §12111(8). Chevron / prepared a written job descrip-

tion that incorporated perceived need for an employee

to be able to tolerate an environment which included ele-

ments such as hydrocarbon liquids and vapors, petroleum,

solvents and oils. J. A. 209. However, the Ninth Circuit

correctly rejected the argument that an employee’s freedom

from susceptibility to harm from chemicals was an essential

function of working in the coker unit merely because

Chevron chose to describe it that way, reasoning that:

Job functions are those acts or actions that constitute a

part of the performance of the job. ‘The job’ at the coker

unit is to extract usable petroleum products from the

crude oil that remains after other refining processes.

The job functions of the plant helper position for which

Echazabal applied consist of various actions that help

keep the coker unit running.

J. A. 209. Chevron cannot transmogrify the essential func-

tions of the actual job functions by merely adding the

requirement that “the job functions at the coker unit consist

of performing the actions that keep the unit running with-

out posing a risk to oneself.” J. A. 209. (emphasis in origi-

nal). “Chevron’s reading of essential functions would, by

definitional slight-of-hand, circumvent Congress’ decision to

exclude a paternalistic risk-to-self defense in circumstances

when an employee’s disability does not prevent him from

performing the requisite work.” J. A. 210.

If the Court endorses the petitioners’ argument, employ-

ers could simply engraft the “threat to self” requirement

onto the definition of “qualified individual with a disability”

with a stroke of a pen. The facts of this case crystallize why

the Court should decline the invitation to provide employers

17

with that unfettered right. Mario Echazabal performed the

same type of work for contractors in the coker unit for over

twenty (20) years. J. A. 197. If he did not adequately per-

form the essential functions of his job it is highly unlikely

that Chevron would have twice made him contingent offers

to work in the coker unit or would have allowed him to

work for its contractors for so long. J. A. 211. There is no

indication that his liver condition had any impact whatso-

ever on his ability to perform the essential functions of the

employment positions he held. J. A. 211.

The conclusion that the ADA does not provide employers

with the right to determine that performing a job without

posing a risk to oneself can be an essential function of any

job is reinforced by the Court’s decision in International

Union, UAW v. Johnson Controls, Inc., 499 U.S. 187 (1991).

Johnson Controls argued that the word “qualification” in

the phrase “bona fide occupational qualification” included

a safety requirement. Jd. at 201. The Court rejected the

argument, reasoning that the term is restricted to qualifi-

cations that affect an employee’s ability to do the job.” Id.

B. The Employer Carries The Burden Of Proof Under

The ADA’s “Direct Threat” Defense

A plaintiff carries the burden of showing that he or she is

a “qualified individual with a disability.” See, e.g., Laurin v.

* The Ninth Circuit in Echazabal further explained the dis-

tinction between safety concerns and job qualifications by

quoting Circuit Court Judge Easterbrooks’ observation that

“i]t is word play to say that ‘the job’ at Johnson [Controls] is

to make batteries without risk to fetuses in the same way ‘the

job’ at Western Airlines is to fly planes without crashing.” J.

A. 210 (citing Johnson Controls, 499 U.S. at 207) (quoting In-

ternational Union, UAW v. Johnson Controls, 886 F.2d 871,

913 (7th Cir. 1989) (Easterbrook, J., dissenting)).

18

Providence Hospital, 150 F.3d 52, 58-59 (1st Cir. 1998). If

the ADA were interpreted to require the plaintiff to show

that she was not a direct threat to herself to prove that she

was “qualified” it would reverse the requirement that an

employer carries the burden of proof under ADA’s direct

threat defense.

The ADA states that if a qualification standard screens

out or tends to screen out an individual with a disability,

the employer must show that the standard is job-relat-

ed and consistent with business necessity. 42 U.S.C.

§12112(bX6). The ADA designates the qualification stan-

dard as a “defense” and lists it under the heading “De-

fenses.” 42 U.S.C. §12113. The ADA states under the head-

ing “Defenses” that an employer “may include a require-

ment that an individual shall not pose a direct threat to the

health or safety of other individuals in the workplace.” 42

U.S.C. §12113(b). The House Conference Report also pro-

vides “the burden should be on the employer to show the

relevance of such factors in relying on the qualification

standard.” H.R. Conf. Rep. No. 546, 101st Cong., 2d Sess. 60

(1990).

In Rizzo v. Children’s World Learning Centers, Inc., 84

F.3d 758 (5th Cir. 1996) the Fifth Circuit concluded that

“(als with all affirmative defenses, the employer bears the

burden of proving that the employee is a direct threat.” Id.

at 764 (citing EEOC’s Interpretive Guidance to 29 C. F. R.

§1630:15(bXc)). Similarly, the court in EEOC v. Chrysler

Corp., 917 F. Supp. 1164 (E.D. Mich. 1996) held that it is

the employer burden to prove that an individual is a

“direct threat” under the ADA. Id. at 1171. Because the

employer carries the burden of proof under the direct threat

defense, the ADA cannot be interpreted to require an

employee to prove that she is not a direct threat to her own

safety to prove that she is qualified for the position in

question.

19

III. LIMITING THE ADA’S “DIRECT THREAT” DEFENSE

TO THREATS TO THE SAFETY OR HEALTH OF

ö OE ETS WOREPLALS CADET

This Court’s observation in Bragdon v. Abbott, 524 U.S.

624 (1998), that “few, if any, activities in life are risk free”

certainly applies to the workplace. Jd. at 649. As one com-

mentator aptly noted “many occupations are inherently

dangerous, yet society regularly permits non-disabled in-

dividuals to take on risky tasks every day out of necessity,

as the economy would fail to function if a line was drawn

prohibiting people from working in jobs that are statisti-

cally shown to cause greater levels of injury, disease or

death.” Supra, Schaffer, Paternalistic Employment Prac-

tices, at 1443.

Employees with disabilities are generally at a greater risk

from work-related injuries than their non-disabled co-

workers. Bentivegna v. U.S. Department of Labor, 694 F. ad

619, 622 (9th Cir. 1982); see also Craig Zwerling, et al.

“Occupational Injuries Among Workers with Disabilities,” in

Employment, Disability and The Americans with Disabili-

ties Act, 315, 325 (Peter David Blanck, ed. 2000) (referring

to national studies which demonstrated that workers with

disabilities have an increased risk of suffering occupational

injuries). However, like their non-disabled counterparts,

many workers with disabilities are willing to accept those

risks every day as a small price to pay for an opportunity.

The risk of injury, for example, did not stop John Hock-

enberry, an individual with paraplegia, from working as a

journalist for NBC and National Public Radio (“NPR”) or

from accepting an assignment from NPR as its Middle East

correspondent. Hockenberry observed that:

In my wheelchair I have piled onto trucks and jeeps,

hauled myself up and down steps and steep hillsides to

use good and bad telephones, to observe riots, a volcano,

street fighting in Romania, to interview Yasir Arafat, to

20

spend the night in walk-up apartments on every floor

from one to five, to wait out curfews with civilian

families, to explore New York’s subway, to learn about

the first temple of the Israelites, to observe the shelling

of Kabul Afghanistan, to witness the dying children of

Somalia. For more than a decade I have experienced

harrowing moments of physical intensity in pursuit of

a deadline, always keeping pace with the rest of the

press corps despite being unable to walk.

John Hockenberry, Moving Violations: War Zones, Wheel-

chairs and Declarations of Independence, 3 (1995). If NPR

had chosen to do so, it could have prevented Hockenberry

from taking these risks by demonstrating that he was a

substantial threat to himself in carrying out the precarious

job duties of a Middle East correspondent. However, by

giving him the opportunity to decide for himself whether to

accept these risks, Hockenberry was able to excel as a

journalist with NPR for over a decade and to win two

Peabody Awards for his work in the process. See id.

The petitioner contends that excluding individuals with

disabilities if they pose a risk to themselves is a business

necessity because it will force employers to pay unnecessary

workers’ compensation claims. (Brief of Petitioner at 23-24).

The petitioner’s argument illustrates the need to interpret

the ADA’s direct threat defense in a way that focuses on the

individual rather than based cu broad generalizations. Be-

cause many occupations are dangerous, every state govern-

ment has established compensation programs to pay the

costs of the inevitable injuries suffered by workers who

accept safety risks every day. Supra, Schaffer, Paternalistic

Employment Practices at 1443. Workers’ compensation is a

vehicle to provide wages and medical care to people who are

injured while working. Arthur Larson, Larson’s Workers’

Compensation Desk Edition, §1:00 at 1-1 (1991) (Larson,

Workers’ Compensation”). The right to recover workers’

21

compensation benefits depends solely on whether there was

a work-related injury and, therefore, negligence and fault

are largely immaterial to the question of liability. Jd. at 1-2.

Employers are usually required to secure protection against

potential liability through private insurance. Jd. Workers’

compensation statute’s underlying philosophy is “social

protection rather than righting a wrong.” Id. at 1-5. Work-

ers’ compensation benefits are generally limited to one-half

to two-thirds of the injured worker’s average weekly wages

as well as hospital and medical expenses. Id.

The EEOC has stated that under the ADA an employer

may not refuse to hire an individual with a disability be-

cause it assumes—correctly or incorrectly—that the in-

dividual poses an increased risk of occupational injuries and

workers’ compensation costs. EEOC Enforcement Guidance:

Workers’ Compensation and the ADA, Equal Employment

Opportunity Commission, at 6 (Sept. 3, 1996) (available

at http://www.eeoc.gov). In its Enforcement Guidance the

EEOC elaborates that an employer may not “err on the side

of safety” because of a possible health or safety risk. Id. The

ADA’s legislative history also demonstrates that when it

enacted the ADA Congress sought to prohibit employers

from refusing to hire individuals with disabilities because

of concerns about increased workers’ compensation costs.

H. R. Rep. No. 485, pt. 3, 101st Cong., 2d Sess. 31 (1990).

Petitioner's concern about the potential for escalating

workers’ compensation costs also ignores the vital role that

“second-injury funds” play in the workers’ compensation

arena. Second-injury funds are intended to remove the fi-

nancial disincentives to hiring individuals with disabilities.

Technical Assistance Manual on the Employment Provi-

sions (Title I) of the ADA, EEOC, §9.5 at IX-6 (Jan. 26,

1992). Without a second-injury fund an employer might

have to pay the full costs if a worker's disability was ex-

acerbated by a work-related injury caused by a pre-existing

condition. Jd. However, under a second-injury fund (which

most states have established) an employer’s liability is

limited and the balance is paid out of a common fund. See,

e.g., Izzo v. Meriden-Wallingford Hospital, 676 A.2d 857,

859 n.2 (Conn. 1996), (observing that Connecticut’s Second

Injury Fund enables employers who received a valid ac-

knowledgment of a pre-existing condition from an employee

the right to transfer the full cost of any subsequent injury);

see also supra, Schaffer, Paternalistic Employment Prac-

tices, at 1483-84. Second-injury funds also share the ADA’s

goal of preventing employers from discriminating against

working men and women with disabilities. See, e.g., Lawson

v. Suwannee Fruit and Steamship Co., 336 U.S. 198, 201

(1948) (observing that one of the major purposes of the

second-injury fund contained in the Long-Shore and Harbor

Compensation Act, 33 U.S.C. §§901-50, was preventing em-

ployers from discriminating against workers with disabil-

ities); State v. Industrial Accident Commission, 306 P. 2d 64,

68-69 (Cal. Dist. Ct. App. 1957) (stating that California’s

Subsequent Injury Fund was intended to encourage the

employment of persons with physical disabilities).

The petitioner also argues that employers must be able to

exclude individuals with disabilities from the workplace if

they pose a direct threat to themselves because of the pos-

sibility of tort, regulatory and criminal liability. (Brief of

Petitioner at 24-25). This Court rejected those same specu-

lative arguments in Johnson Controls, reasoning that the

potential for employer liability for fetal harm was “remote

at best” and did not justify excluding fertile women from

jobs that could damage their fetuses. 499 U.S. at 208.

Johnson Controls also suggested that state tort law would

be preempted if it interfered with federal anti-discrimina-

tion law, explaining that “we have not hesitated to abrogate

state law when satisfied that its enforcement would stand

as an obstacle to the accomplishment and execution of the

full purposes and objectives of Congress.” Jd. at 209-10

(internal quotation marks omitted).

An employer that is concerned about potential liability

can turn to the ADA as its first line of defense. “Direct

threat” refers to a threat to the health or safety of others

“that cannot be eliminated by reasonable accommodation.”

42 U.S.C. §12111(3); see also, 29 C. F. R. 61630. Ar). There-

fore, an employer must first examine whether any accom-

modations can be made to reduce the perceived health

risks. See, e.g., Nunes v. Wal-Mart Stores, 164 F.3d 1243,

1248 (9th Cir. 1999); EEOC v. Kinney Shoe Corp. 917

F. Supp. 419, 428-29 (W. D. Va. 1996), aff'd sub nom., Mar-

tinson v. Kinney Shoe Corp., 104 F.3d 683 (4th Cir. 1997)

(despite holding for the employer on other grounds, the

district court stated that even if the shoe salesperson posed

a substantial risk of harm because of possibility of epileptic

seizures, there were reasonable accommodations that the

employer could have made so there would not have been a

direct threat, such as removing stock from high shelves so

he would avoid risk of having a seizure while climbing a

ladder).

If the employer cannot either eliminate the safety risks or

reduce them to an acceptable level as a result of a reason-

able accommodation, the employer could still reduce or

eliminate any potential tort liability by informing its

employees of the workplace hazards. Katelyn S. Oldham,

Comment: The Implications of Echazabal v. Chevron, U.S.A.

Inc., for Employers and for the Administration of Workers

Compensation and the Occupational Safety and Health Act,

80 Or. L. Rev. 327, 373 (2001). (Oldham, Implications of

Echazaba // For example, Johnson Controls observed that

the employer warned its employees about the potential

damaging effects of lead. 499 U.S. at 208. Under basic tort

law principles, if an individual consents to participating in

a potentially dangerous activity the individual has accepted

24

the risks of the activity and waived the right to sue for

damages resulting from the danger.‘

The petitioner also argues that unless the court endorses

the EEOC’s definition of the direct threat defense employ-

ers will be exposed to substantial legal risks under the

Occupational Safety and Health Act, 29 U.S.C. §651 et seq.

(“OSHA”) (Brief of Petitioner at 24-26). In 1970, Congress

adopted the OSHA in an effort to protect employees from

workplace injuries. Despite nearly thirty (30) years of

OSHA oversight over seven million private sector workers

were hurt or became ill in 1998. Supra, Schaffer, Paternal-

istic Employment Practices, at 1483 (citing U.S. Dep’t of

Labor, Bureau of Labor Statistics, Incident Rates of Non-

fatal Occupationai Injuries and Illnesses By Industry and

Selected Case Types Tbl. 1 (1998)). More than two million

of those workers, or two percent (2%) of the work force,

were injured seriously enough in 1998 to lose time from

work. Id. In 1999, over 6,000 deaths occurred in the work-

place. Id. (citing U.S. Dep’t of Labor, Bureau of Labor

Statistics, Census of Fatal Occupational Injuries By Injury

or Event Exposure Tbl. A-1 (1999)).

The petitioner does not contend that OSHA has a specific

regulation that would require Chevron to exclude persons

with Hepatitis C from areas in the workplace containing

* See supra, Oldham, The Implications of Echazabal, at 373

(citing Restatement (Second) of Torts 496A (1965)) (“A plaintiff

who voluntarily assumes a risk of harm arising from the

negligent or reckless conduct of the defendant cannot recover

for such harm”). The only exceptions to this general rule would

be if public policy considerations prohibited an individual from

contracting to take the risk or if the plaintiff did not fully

comprehend the nature of the risk. Id. (citing Restatement

(Second) of Torts 496B and 496D; D. Dobbs, The Law of Torts

211 (2000)).

25

hydrocarbons. See Albertson’s v. Kirkenburg, 527 U.S. 555,

570-73 (1999) (relying on the distant visual acuity standard

of the Federal Motor Carrier Safety Regulations, 49 C.F.R.

§391.41(b)\(1) to uphold the exclusion of a truck driver with

a visual impairment). Rather, petitioner relies on the

OSHA’s “general duty” clause, which requires employers to

“furnish to each of his employees employment and a place

of employment that are free from recognized hazards that

are causing or are likely to cause death or serious physical

harm to his employees.” 29 U.S.C. §654(aX1). Although the

OSHA has been in effect over thirty (30) years the peti-

tioner has failed to identify even one case where OSHA took

enforcement action against an employer under its general

duty clause for allowing an employee who was aware of the

risk to work in an environment which potentially jeopar-

dized the employee’s health. An employer may not rely on

an exclusionary policy to enable it to meet its obligation of

providing its employees with a safe workplace. See Johnson

Controls, 499 U.S. at 210 (“Johnson Controls attempts to

solve the problem of reproductive health hazards by re-

sorting to an exclusionary policy. Title VII plainly forbids

illegal sex discrimination as a method of diverting attention

from an employer’s obligation to police its workplace”); see

also, supra, Oldham, Implications of Echazabal, at 373.

The petitioner also attempts to justify the need for ex-

clusionary policies by raising the spectre of criminal sanc-

tions, fines and imprisonment (Brief of Petitioner at 26-28).

However, the cases and statutes upon which the petitioner

relies demonstrate that they focus on intentional wrong-

doing by the employer. In People v. Pymm, 76 N.Y.2d 511,

563 N.E.2d 1 (1990), for example, OSHA conducted four

inspections between 1981 and 1984 of a facility that manu-

factured thermometers for clinical use. OSHA concluded

that the second floor of the facility was dangerously contam-

inated with mercury and that the workers on the floor did

not wear protective gear such as gloves and respirators. Id.

OSHA warned the facilitys owners of the dangers of

mercury poisoning and encouraged then to take action that

would reduce the possibility that workers would ingest

liquid mercury or inhale mercury vapors. Jd. at 516, 563

N.E.2d at 3. (Mercury vapor is highly toxic and long-term

exposure to low concentrations of mercury can lead to

permanent neurological damage. Id. at 516, 563 N. E. ad at

2.) In 1985, OSHA learned that the facility's owners were

running a clandestine mercury reclamation project in the

basement. Jd. The owners had omitted the basement area

from the previous inspections and, when confronted by

OSHA, denied that the basement reclamation project even

existed. Jd. An inspection of the reclamation project re-

vealed boxes stacked against walls containing broken

thermometers with mercury seeping out of the boxes and

out onto the floor. Jd. at 517, 563 N.E.2d at 3. Readings

taken in the basement revealed level readings that were

five times the level allowed by OSHA. Jd. The owners of the

facility were indicted after an employee developed brain

damage due to long-term exposure to mercury. Id.

The facts in Pymm are a far cry from a situation where an

employer discloses any potential health risks to an em-

ployee with a disability, attempts to reduce or eliminate the

perceived risks and, if unsuccessful, permits the employee

to choose whether or not to accept that risk. An employer

that both attempts to eliminate or reduce the problem and

leaves the choice of whether to accept that risk to the dis-

abled employee is not engaging in the sort of “intolerable

and morally repugnant conduct” which could lead to crim-

inal penalties. Pymm, 76 N.Y.2d at 521, 563 N.E.2d at 6.

27

IV. AN EMPLOYER IS NOT IMMUNE FROM LIABILITY

UNDER THE ADA’S “DIRECT THREAT” DEFENSE

„

If the Court endorses the petitioner's argument that the

ADA’s direct threat defense extends to “threat to self,” the

Court should not endorse the argument that it is not liable

under the ADA merely because it relied upon the opinion of

its doctors. See Brief of Petitioner at 46; Brief of Amici

American College of Occupational & Environmental Medi-

cine at 11. The opinion of a company’s doctor is often the

product of stereotypical beliefs and fears about people with

disabilities, lack of expertise, speculation or incomplete

medical information. In EEOC v. Texas Bus Lines, 923

F. Supp. 965 (S.D. Tex. 1996), for example, the court re-

jected the employer’s argument that it could not be liable

under the ADA for refusing to hire an applicant with

obesity for a bus driver position because it relied upon the

decision of a company physician who had been conducting

Department of Transportation (“DOT”) physical examina-

tions for applicants of motor carrier positions for over forty

(40) years. Id. at 968, 976. The physician disqualified the

applicant based on his conclusion that the applicant’s

obesity would pose a direct threat to her passengers’ safety

because she would not be able to get out of the way in the

event of an accident. Jd. at 980, 981. The court rejected the

employer’s direct threat argument, reasoning that: (1) the

DOT regulations governing physical qualifications for bus

drivers did not address the driver’s ability to handle emer-

gency situations, and (2) there was no evidence that the

applicant’s obesity would prevent her from being able to

handle emergency situations. Jd. The court elaborated that

“Texas Bus Lines’ blind reliance on a very limited medical

examination of (the applicant] by Dr. Frierson is misplaced

and cannot be used as a justification to circumvent the anti-

discrimination mandate of the ADA.” Id. at 979.

28

The employer's physician claimed in EEOC v. Chrysler

Corp., 917 F. Supp. 1164 (E.D. Mich. 1996) that an electri-

cian posed a direct threat to himself and his co-workers

because of possible complications from his diabetes, such as

an increased risk of sudden blurred or lost vision. Jd. at

1171. Despite the employer’s “ominous predictions,” how-

ever, the court rejected the employer’s direct threat defense,

reasoning that the employer’s physician: (1) did not ascer-

tain whether the individual was experiencing any diabetes-

related complications; (2) did not ask the electrician wheth-

er he had suffered from dizziness, fainting or vomiting dur-

ing his 25 years as an electrician; (3) conducted a minimal

examination which revealed that the electrician did not

suffer from any diabetes-related complications; (4) admitted

that, other than the electrician’s blood sugar level, the em-

ployee exhibited no indications that he posed an imminent

risk of injuring himself, and (5) ignored the opinion of a

physician, who conducted a more thorough examination,

that the individual did not require any work restrictions.

Id. at 1171, 1172.

In Bragdon v. Abbott, 524 U.S. 624 (1998), this Court

stated that decisions as to whether the individual is a direct

threat must be “based on objective, scientific information

available to [the health care provider] and others in the

profession.” Jd. at 650. According to this Court, the “objec-

tive reasonableness” of those medical determinations should

be assessed “in light of available medical evidence.” Jd.

Bragdon is consistent with the EEOC’s regulation that the

“determination that an individual poses a ‘direct threat’...

shall be based on a reasonable medical judgment that relies

on the most current knowledge and/or on the best available

objective evidence.” 29 C.F.R. §1630.2(r). The standards

articulated in Bragdon and by the EEOC appropriately

place the “direct threat” focus on objectively reasonable

medical opinions. The ADA’s direct threat terrain should

not be altered in a manner that would immunize employers

29

from liability based solely on its claim that the adverse

employment action was based on the advice of its physician.

CONCLUSION

For the foregoing reasons, the Court should affirm the

judgment of the Court of Appeals.

Respectful'y submitted,

GARY PHELAN

Counsel of Record

TAMMY MARZIGLIANO

KLEBANOFF & PHELAN, P.C.

Corporate Center West

433 South Main Street

Suite 117

West Hartford, CT 06110

(860) 313-5005

JANIS E. EGGLESTON

Senior Staff Attorney

NATIONAL EMPLOYMENT

LAWYERS ASSOCIATION

44 Montgomery Street

Suite 2080

San Francisco, CA 94104

(415) 296-7629

Attorneys for Amicus Curiae

NATIONAL EMPLOYMENT

LAWYERS ASSOCIATION

February 1, 2002