Employers may exclude workers with disabilities from positions that could aggravate their disabilities

Law Reporter, Sep 2002

Cue. USA -R 122 S. Ct.2045 (2002).

The U.S. Supreme Court held that an Equal Employment Opportunity Commission (EEOC) regulation, 29 C.F.RI $1630.15(b)(2)(2001), which permits employers to exclude workers with disabilities from positions where those disabilities would pose a threat to the workers' health is permissible under the Americans with Disabilities Act (ADA), 42 U.S.C. $$12101 et seq.

Here, a contract oil refinery worker with hepatitis C applied for a permanent position with the refinery. The refinery told him that he would be hired if he passed a physical examination.

When the refinery's physicians determined that the worker's condition would be aggravated by continued exposure to refinery toxins, the company withdrew the offer and asked the contracting company that employed the worker to reassign or remove him. The contracting company laid off the worker.

The worker sued the refinery, alleging that it had violated the ADA by refusing to hire him or let him continue as a contractor because of his condition. Defendant moved for summary judgment, arguing that under $1630.15(b)(2), it could exclude plaintiff from positions where his disability would pose a direct threat to his health. The trial court granted the motion.

The Ninth Circuit Court of Appeals reversed the trial court's decision, finding that the EEOC exceeded its permissible rulemaking under the ADA in promulgating 1630.15(b)(2). The court reasoned that because the ADA's text specifically permits employers to exclude workers from positions where the workers' disabilities would place others at risk, the absence of similar language applicable to the workers themselves indicates that workers with disabilities cannot be excluded where the only risk is to themselves.

Reversing, the Supreme Court rejected the contention that the ADA's text excludes the EEOC regulation under the interpretive principle that text mentioning one item of an associated group or series of items excludes items left unmentioned. Finding that statutory language suggesting exclusiveness is missing from the applicable ADA provisions, the Court explained that Congress included the "harm to others" provision as an example of a legitimate job-related qualification on which an employer could base a hiring decision regarding a worker with a disability. The Court noted that the provision was found within spacious defensive categories that gave the EEOC considerable discretion in establishing the limits of permissible qualification standards.

The Court also explained that language stating that qualification standards "may include" harm to others indicates that the provision was not intended as an exclusive specification but instead confirmed that considerable discretion was given to the agency in determining appropriate specifications.

Further, the Court found no indication that, in drafting the relevant provision, Congress considered an established series of items that included both threats to others and threats to the worker and deliberately chose to include the first but not the second.

Consequently, the Court reasoned that the regulation was permissible as long as it made sense of the statutory defense for standards that are job-related and consistent with business necessity. The Court found that defendant's desire to avoid potential liability under the Occupational Safety and Health Act of 1970 (OSHA), 29 U.S.C. $$ 651 et seq., was sufficient to show that the regulation was permissible.

The Court explained that an employer's decision to hire a worker with a disability for a position that could pose a threat to the worker would place the ADA policy of ensuring a disabled worker the right to compete equally in the workplace in competition with the OSHA policy of ensuring each worker a safe workplace. The EEOC's regulation here exemplifies the choices that agencies are expected to make when Congress leaves resolution of competing objectives imprecisely marked but subject to administrative discretion, the Court said.

Consequently, the Court remanded the case for firther proceedings in accordance with its decision.