Supreme Court to determine ADA ‘direct threat'

Daily Record (Rochester, NY), Mar 6, 2002 by Edward Steve

On February 27, 2002, the United States Supreme Court heard arguments regarding the decision of the United States Court of Appeals for the Ninth Circuit in Echazabal v. Chevron USA, Inc., 226 F.3d 1063 (9th Cir. 2000). The decision of the Supreme Court will determine whether the "direct threat" defense available to employers under the Americans with Disabilities Act (ADA) applies to applicants for employment who pose a direct threat to their own health or safety, but not to the health or safety of other individuals in the workplace. Echazabal had performed work at Chevron for various maintenance contractors from 1972 to 1996.

In 1992, he applied to work directly for Chevron at the same coker location where he had been performing work for 20 years. After determining that he was qualified for the job, Chevron extended him an offer contingent on his passing a physical examination. A pre-employment physical examination conducted by Chevron's physician revealed that Echazabal's liver was releasing certain enzymes at a higher than normal level. Based on these results, Chevron concluded that Echazabal's liver might be damaged by exposure to the solvents and chemicals present in the coker unit. For that reason, Chevron rescinded its job offer. Nevertheless, Echazabal continued to work for the maintenance contractor at locations throughout Chevron's refinery, including the coker unit. Chevron made no effort to have him removed from his assignment. In 1995, Echazabal again applied to Chevron for a position at the coker unit. As it had done before, Chevron made Echazabal a job offer that was contingent upon his passing a physical examination. Once again, Chevron rescinded its job offer on the ground that there was a risk that Echazabal's liver would be damaged if he worked at the coker unit. Unlike in 1992, however, Chevron wrote the maintenance contractor and asked that it "immediately remove Mr. Echazabal from the refinery or place him in a position that eliminates his exposure to solvents/chemicals." As a result, Echazabal was no longer permitted to work at the Chevron refinery. Echazabal subsequently filed a complaint alleging, among other things, that Chevron violated the ADA by refusing to hire him because of his disability. Congress, at 42 U.S.C. 12113, provides that an employer may impose, as a qualification standard for employment, "a requirement that an individual shall not pose a direct threat to the health or safety of other individuals in the workplace." (Emphasis added.) However, the Equal Employment Opportunity Commission (EEOC), in its regulations implementing the ADA at 29 C.F.R. 1630.2(r) and 29 C.F.R. 1630.15(b)(2), states that a direct threat means "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." (Emphasis added.) Chevron stated that Echazabal was a direct threat to himself, and that such direct threat could not be removed by reasonable accommodation. Therefore, based on the EEOC regulations, Chevron argued that Echazabal was not entitled to the protections of the ADA. Furthermore, Chevron argued that hiring Echazabal would expose Chevron to potential tort liability. Finally, Chevron stated that an essential function of the position in question was to perform work at the coker unit without posing a threat to one's own health or safety. Chevron argued that, as Echazabal could not perform an essential function of the position with or without reasonable accommodation, he was not entitled to the protections of the ADA. The Court of Appeals rejected the EEOC's regulatory interpretation of the ADA's "direct threat" provision. The Court of Appeals, in analyzing whether to give any deference to the EEOC's regulations, stated the general rule set forth in Chevron, U.S.A., Inc. v. Natural Resources Defense Counsel, Inc., 467 U.S. 837 (1984): "If 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." The Court of Appeals noted that the ADA provides that a direct threat only applies to a direct threat to the health or safety of others. It further cited several examples of Congressional intent to limit the "direct threat" to only when the direct threat is to the health or safety of others. The Court of Appeals also discussed the Supreme Court's interpretation of federal employment discrimination statutes to prohibit paternalistic employment policies. As part of its review of the relevant case law, the Court of Appeals cited the Supreme Court's decision in International Union, United Auto. Aerospace & Agric. Implement Workers of America, UAW v. Johnson Controls, Inc., 499 U.S. 187 (1991), where the Supreme Court held that "threats of lead exposure to a female employee's own reproductive health did not justify the employer's decision to exclude women from certain positions at a battery manufacturing plant." The Court of Appeals concluded: "Given Congress' 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 should come as no surprise that it would enact legislation allowing the same freedom of choice to disabled individuals." As Congress' intent to have the ADA's "direct threat" provisions only apply where the threat is to others was unambiguous, the EEOC's interpretive regulations expanding the ADA's "direct threat" provisions to include a direct threat to the health or safety of the individual were invalid. The Court of Appeals also rejected Chevron's arguments that it could be exposed to tort liability for hiring Echazabal, reasoning that state tort law would be preempted. The Court of Appeals noted: "In Johnson Controls, the Supreme Court strongly suggested that state tort law would be preempted to the extent that it interfered with federal anti- discrimination law. The Supreme Court stated that 'we have not hesitated to abrogate state law where satisfied that its enforcement would stand as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress.'" The Court of Appeals also rejected Chevron's assertion that an essential function of the position in question was to be able to perform the duties "without posing a threat to one's own health or safety." The Court of Appeals regarded Chevron's classification of the essential function as a "condition" of employment, as opposed to a "job function." The Court of Appeals concluded that Chevron did "nothing more than add a prohibited condition to [the] actual job functions. . . ." The Court of Appeals ultimately rejected Chevron's arguments and reversed the District Court's grant of summary judgment to Chevron. This is the first in a series of articles on this topic. My April article will provide an analysis of the arguments presented by the parties. Once a decision is rendered, there will be an article analyzing the Supreme Court's decision. Edward J. Steve is an associate at Boylan, Brown, Code, Vigdor & Wilson, LLP and practices in the area of general corporate law, with a concentration in employment law.