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Employers Can Defend Decisions Not to Hire Disabled Individuals at Risk of Workplace Health Hazards

By Francis P. Alvarez
  • June 12, 2002

On June 10, the U. S. Supreme Court issued the third major decision of its 2001-2002 term involving the Americans With Disabilities Act -- and the third one favorable to employers. Chevron U.S.A., Inc. v. Echazabal, 536 U.S. ___ (2002), Docket No. 00-1406 (.PDF file/221 KB). In the unanimous opinion, the Court upheld the "direct threat" regulation issued by the Equal Employment Opportunity Commission authorizing an employer to refuse to employ an individual with a disability in a job which could endanger his or her own health or safety. With this ruling, the Court continues its approach to the ADA of focusing on the importance of individualized assessment and the use of objective and reliable medical opinion when making employment decisions with a minimum risk of liability.

The Chevron decision overturns a ruling by the U. S. Court of Appeals for the Ninth Circuit in favor of Mario Echazabal, who had a liver condition which medical opinion had shown would be exacerbated by exposure to toxins in the workplace. The Ninth Circuit had said the ADA's "direct threat" provision permitting an employer to make an employment decision adverse to an individual with a disability only applied when the potential for harm was to others in the workplace and not to the disabled individual.

The Facts and the Decisions of the Lower Courts

Echazabal worked for a Chevron contractor for over twenty years. He applied for a position at a Chevron U.S.A. refinery in 1992 and again in 1995. Chevron refused to hire him both times because it believed the position would pose a serious threat to his life. Echazabal has Hepatitis C, a liver disease which could have become life-threatening if he were exposed to the solvents and chemicals in the coker unit position he sought. When Chevron denied Echazabal the job in 1995 after a post-offer medical examination, it also demanded the contractor remove him from any environment where he would be exposed to chemicals.

Echazabal filed a complaint with the EEOC and subsequently filed suit in California state court. Chevron removed the case to federal court, where the district judge granted the company's motion for summary judgment. On Echazabal's appeal, the Ninth Circuit court reversed the judgment, saying the "direct threat" defense available to employers under the ADA does not apply to employees who pose a direct threat only to their own health or safety. Although Chevron argued that Echazabal was not a "qualified individual" because he could not safely perform the essential functions of the refinery position, the appeals court disagreed, stating that performing one's duties without posing a threat to one's own health or safety is not an "essential function" of a position.

Chevron relied on the EEOC's "direct threat" regulation that "an individual shall not pose a direct threat to the health or safety of the individual or others in the workplace." In rejecting the regulation, the Ninth Circuit said Congress used explicit language in the ADA that "direct threat" included only individuals who presented a risk of harm to others in the workplace. Chevron also had argued that requiring it to keep employees working in dangerous positions runs afoul of OSHA's "general duty" clause and state civil and criminal laws, and exposes the company to tort liability and increased workers' compensation costs.

Major Points of Supreme Court's Ruling

Reversing the Ninth Circuit and upholding the EEOC's "direct threat to self" regulation, the decision of the U. S. Supreme Court focused on three major points. First, the Court acknowledged that the ADA itself addresses the situation where an individual with a disability may pose a "direct threat to the health or safety of other individuals in the workplace." That language follows the ADA's recognition that an employer may use job qualification standards that tend to screen out disabled individuals but that are shown to be job-related and consistent with business necessity. As the Court noted, the EEOC's regulation simply takes that position "one step further, in allowing an employer to screen out a potential worker with a disability not only for risks that he would pose to others in the workplace but for risks on the job to his own health or safety ...."

Second, the Court rejected Echazabal's argument that if Congress had intended to include "threat to self" as part of the direct threat defense, it would have referenced it in the ADA itself. Echazabal failed to convince the Court to apply the "expression-exclusion rule" (from the interpretative canon expressio unius exclusio alterius, which means "expressing one item of an associated group or series excludes another left unmentioned"). While the ADA provides that qualification standards "may include" those that pose a threat to others, the Court said that Congress had included the "harm-to-others provision as an example" rather than a limitation of the "spacious defensive categories, which seem to give an agency ... a good deal of discretion in setting the limits of permissible qualification standards."

Among other reasons supporting deference to the agency regulation, the Court noted the absence of "that essential extrastatutory ingredient of an expression-exclusion demonstration, the series of terms from which an omission bespeaks a negative implication." When drafting the ADA, Congress used language identical to the Rehabilitation Act, a precursor to the ADA. That language was silent about threats to one's self. However, in the Rehab Act interpretive guidance the EEOC specifically included threats to one's self, much the same as it did in the ADA regulations. To further make the point, the Court suggested that if it were to interpret the language as expressing an exclusionary intent, it would be illegal for an employer to refuse to hire an individual who posed a threat to others outside the workplace, a result Congress could not possibly have intended. "If Typhoid Mary had come under the ADA, would a meat packer have been defenseless if Mary had sued after being turned away?" the Court queried.

Third, the Court identified Chevron's legitimate concerns -- lost sick time, excessive absenteeism, excessive turnover from medical retirement or death, and litigation under state tort law -- about hiring an employee who poses a risk to his own health. Moreover, the Court reasoned that concern about violating the federal Occupational Safety and Health Act was "enough to show that the regulation is entitled to survive." Citing OSHA's general duty clause to provide all employees with a workplace free from recognized hazards, the Court noted that while it is "an open question whether an employer would be liable under OSHA for hiring an individual who knowingly consented to the particular dangers the job would pose to him . . . there is no denying the employer would be asking for trouble." The EEOC guidance is a permissible resolution of that tension which otherwise would be left for the courts to resolve.

Addressing another concern about application of the threat-to-self defense, the Court noted that the ADA was enacted, in part, to combat paternalism based on "untested and pretextual stereotypes." Acknowledging a distinction between "a specifically demonstrated risk" and employment refusals based on stereotypes of classes of disabled people, the Court said the ADA only prohibits "generalities and misperceptions about disabilities." The threat-to-self analysis, however, is not based "on averages and group based predictions," the Court reasoned, but it requires an individualized risk assessment, which is the heart and soul of the ADA:

The direct threat defense must be "based on a reasonable medical judgment that relies on the most current medical knowledge and/or the best available objective evidence," and upon an expressly "individualized assessment of the individual's present ability to safely perform the essential functions of the job," reached after considering, among other things, the imminence of the risk and the severity of the harm portended. 29 CFR §1630.2(r) (2001). (Opinion, p. 12)

The Court endorsed the EEOC's differentiation between "workplace paternalism" and "ignoring specific and documented risks to the employee himself," finding the regulation in harmony with the ADA's focus on individualized assessment.

What the Decision Means for Employers

Consistent with the Supreme Court's prior ADA decisions of the past several years, the Chevron case underscores the basic premise that the law does not bar employers from making employment decisions that may impact negatively on individuals with disabilities. Instead, these cases have focused on the importance of the ADA's mantra of case-by-case determinations of who is disabled, what is a reasonable accommodation, and what is a lawful defense to an adverse employment decision.

"This case confirms what perhaps should have been a non-issue -- that employers have a voice in a decision about whether an individual with a disability is healthy enough to work," said Frank Alvarez, Jackson Lewis partner and coordinator of the firm's disability management practice group. "Had the Supreme Court upheld the Ninth Circuit's decision, employers could have done nothing to prevent a disabled employee from working in a position that could result in devastating health consequences, even death. That is an unconscionable notion that ultimately proved to be an untenable legal position."

The challenge for employers, however, is just beginning. "Direct threat" is an affirmative defense to liability for which employers carry the burden of proof. The Court expressly declined to say how acute the threat to oneself must be, leaving those determinations to the trial courts, at least in the first instance. At a minimum, employers seeking to defend decisions based on the "threat to self" must have obtained a "reasonable medical judgment" founded on competent medical opinions.

The Court has made clear in this decision, as well as in the prior decision, US Airways, Inc. v. Barnett, 536 U.S. ____ (2002), Docket No. 00-1250 (.PDF file/519 KB), that the primary purpose of the ADA is to eliminate stereotypical decisions about what individuals with disabilities can or cannot do. For employment decisions concerning these individuals to stand up, employers must obtain input from medical doctors; gut feelings or informed speculation is not enough. Employers must develop working relationships with medical doctors and other health care professionals skilled in assessing the impact of medical conditions on an individual's ability to work.

While employer awareness of these requirements is critically important in every decision concerning an injured or ill employee, employers are likely to feel the impact most as they implement programs to prevent and manage workplace injuries. Increasing workers' compensation costs are making such programs more and more attractive. Employers testing applicants' physical abilities as part of a work injury prevention program must be prepared to prove that the job functions at issue are essential, the risk of injury due to a medical impairment is "significant," the potential harm that will occur is "substantial" and reasonable accomodations cannot reduce to an acceptable level or eliminate the threat. Employers need to review medical examination procedures and employment testing programs to ensure they can withstand such scrutiny.

Jackson Lewis Disability Management Practice Group

The Jackson Lewis Disability Management Practice Group is available to assist employers in sorting through the complex legal and compliance issues involving the Americans with Disabilities Act, the Family and Medical Leave Act, and other workplace disability issues.

©2002 Jackson Lewis P.C. This material is provided for informational purposes only. It is not intended to constitute legal advice nor does it create a client-lawyer relationship between Jackson Lewis and any recipient. Recipients should consult with counsel before taking any actions based on the information contained within this material. This material may be considered attorney advertising in some jurisdictions. Prior results do not guarantee a similar outcome.

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