The U.S. Supreme Court has, in recent years, paid increasing attention to and resolved several long-standing debates regarding the proper scope of federal employment laws. For example, the Supreme Court (never missing an opportunity to reverse the Ninth Circuit Court of Appeals) agreed to resolve a conflict among the circuits regarding whether the “direct threat” defense under the Americans with Disabilities Act (ADA) can apply where the employee poses a threat of harm only to himself. Like its other recent employment decisions, the Court’s decision in Chevron U.S.A. Inc. v. Echazabal, 122 S. Ct. 2045 (2002) likely will have a lasting and noticeable effect on federal discrimination litigation and continue to fuel a trend toward employer-friendly case law.
Mario Echazabal began working at a Chevron-owned oil refinery in 1972, employed by various maintenance contractors. Id. at 2047. Twice, in 1992 and 1995, Echazabal applied for employment directly with Chevron. Id. at 2047-48; Echazabal v. Chevron U.S.A., Inc., 226 F.3d 1063, 1065 (9th Cir. 2000). On both occasions he was hired conditionally, pending his passing a physical exam. On both occasions the offer of employment ultimately was withdrawn when the exams revealed liver abnormality and damage (later shown to be caused by hepatitis C) that would have been aggravated by continued exposure to liver-toxic chemicals at the refinery. 122 S. Ct. at 2047-48; 226 F.3d at 1065. It is not clear why Echazabal was allowed to continue working at the refinery after the first exam. Following the second, however, Chevron asked the contractor either to reassign Echazabal to duties away from exposure to liver-toxic chemicals or remove him from the refinery. 122 S. Ct. at 2048; 226 F.3d at 1065. Thereafter, the contractor laid Echazabal off. 122 S. Ct. at 2048.
Echazabal subsequently sued Chevron, claiming the company violated the ADA by refusing to hire him or even allow him to continue working in the refinery because of his liver condition. Id. Chevron defended the lawsuit on the grounds that Echazabal was not “otherwise qualified” for the job, because he was unable to tolerate the working environment, and on the grounds that he would pose a direct threat to his own health if he continued to work at the refinery. Id.; 226 F.3d at 1065-66, 1070-71. The district court granted summary judgment to Chevron, holding that “Echazabal raised no genuine issue of material fact as to whether the company acted reasonably in relying on its own doctors’ medical advice . . ..” 122 S. Ct. at 2048. Echazabal appealed to the Ninth Circuit, which asked for briefing on the question (not raised before the district court), of whether the direct threat defense can apply to a threat-to-self. Id.
The ADA proscribes “qualification standards, employment tests or other selection criteria that screen out or tend to screen out an individual with a disability . . . unless the standard, test or other selection criteria . . . is shown to be job-related for the position in question and is consistent with business necessity.” 42 U.S.C. § 12112(b)(6). The ADA specifically sets forth a defense, however, where the “qualification standards [have been] shown to be jobrelated and consistent with business necessity, and such performance cannot be accomplished by reasonable accommodation . . ..” Id. § 12113(a). “‘[Q]ualification standards’ may include a requirement that an individual shall not pose a direct threat to the health or safety of other individuals in the workplace.” Id. § 12113(b) (emphasis added).
The regulations issued by the Equal Employment Opportunity Commission (EEOC) implementing these provisions take them one step further. Specifically, the EEOC regulations provide that “[d]irect 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.” 29 C.F.R. § 1630.2(r) (emphasis added). Thus, the EEOC, through its implementing regulations, clearly establishes that the direct threat defense may be utilized even where the threat is to oneself.
The Ninth Circuit, over a sharp dissent, took a much different view. It held that the clear language of the statute unambiguously demonstrated the intent of Congress to allow employers to protect other persons in the workplace, but to forbid “paternalistic concerns regarding the [disabled] person’s health.” The court rejected the EEOC’s “contrary interpretation.” 226 F.3d at 1067-69.
The Supreme Court reversed, categorically rejecting most, if not all, of the Ninth Circuit’s reasoning and holding (unanimously) that the direct threat defense may be applied where the only threat of harm is to the disabled employee. The Court noted that the statute states only that a qualification standard “may include” a requirement that the employee not pose a direct threat of harm to others. 122 S. Ct. at 2049. “Far from supporting Echazabal’s position, the expansive phrasing of ‘may include’ points directly away from the sort of exclusive specification he claims.” Id. at 2050. The Supreme Court further observed that, taken to its logical extreme, the Ninth Circuit’s limited interpretation of the statute would lead to absurd results:
When Congress specified threats to others in the workplace, for example, could it possibly have meant that an employer could not defend a refusal to hire when a worker’s disability would threaten others outside the workplace? If Typhoid Mary had come under the ADA, would a meat packer have been defenseless if Mary had sued after being turned away?
Id. at 2051.
The Supreme Court also considered the impact of the Ninth Circuit’s reasoning on state and federal worker safety laws, noting specifically that the Occupational Safety and Health Act obligates employers to furnish employees with “a place of employment . . . free from recognized hazards that are causing or are likely to cause death or serious physical harm.” Id. at 2052, citing 29 U.S.C. § 654(a)(1). The Court found that it simply could not reconcile the Ninth Circuit’s decision to require employers to place employees in harm’s way with legitimate policies protecting those same workers from the threat of harm. Ultimately, the Supreme Court decided that the EEOC regulation was a permissible and reasonable interpretation of the statute, reversed the Ninth Circuit’s rejection of that regulation and remanded the case to the lower court “for proceedings consistent with this opinion.” Id. at 2053. The Court left it to the Ninth Circuit to determine whether the direct threat defense was established by the facts in the case.
While this decision is important to further refining federal disability discrimination law, and reflects a welcome and continuing trend of decisions favorable to employers, it bears noting that the holding will have a somewhat limited effect. To date, the number of cases raising the defense of direct threat to self or others are relatively few; in part, perhaps, because of the uncertainty regarding whether the defense would apply to the disabled employee him/herself. It likely also is true that disabilities typically will only render an employee unable to perform certain essential functions of the job. Disabilities posing a threat of physical harm are, and likely will continue to be, somewhat rare. Further, Echazabal will not necessarily translate to state disability discrimination statutes. The direct threat defense is a creature born out of the specific language of the ADA and is not present in all state statutes.
For an employer assessing its disability discrimination policies and seeking to provide reasonable accommodations, Echazabal likely will require no dramatic change in policy or procedure (assuming, of course, that the employer’s disability discrimination and reasonable accommodations policies were carefully and properly drafted in the first instance). As the Supreme Court notes, the EEOC regulations specifically require that the “determination that an individual poses a ‘direct threat’ shall be based on an individualized assessment of the individual’s present ability to safely perform the essential functions of the job [,which] shall be based on a reasonable medical judgment that relies on the most current medical knowledge and/or on the best available objective evidence.” 29 C.F.R. § 1630.2(r).
As many employers are aware, all disability and reasonable accommodation assessments must be based upon an “individualized assessment” of: a) the employee’s actual medical restrictions, using the best available medical date and information, and, b) the needs of the employer and the requirements of the job. Consequently, if an employer is utilizing an appropriately interactive process to identify and implement reasonable accommodations for potentially disabled employees, it already is engaging in exactly the sort of “individualized assessment” required to assert the direct threat defense. In fact, the only change that may be necessary for many employers is merely to establish the direct threat defense on the radar screen during reasonable accommodation assessment, by requesting, identifying (and keeping) medical documents and information that might establish a direct threat of harm posed by the alleged disability.
It will be interesting to see the ramifications of Echazabal for ADA enforcement in the coming years. Currently, the EEOC has been aggressively litigating against employers that, for example, try to identify employees or potential employees who are susceptible to carpal tunnel/repetitive motion injuries, in order to exclude them from repetitive motion positions. It seems to follow logically from Echazabal that an employee who cannot perform the essential functions of her position without credible risk of injury (whether that injury be to her liver or to her tendons) legitimately can be excluded from that position because she is a “direct threat” to her own health.
Also, the Supreme Court failed to address a key question which has split the circuits — whether an employee’s threat of harm may render him not “qualified” under the prima facie prong of the disability discrimination case. The Ninth Circuit in Echazabal held that a direct threat must be analyzed as an affirmative defense, but other circuits have held that an employee is not “qualified” if he cannot perform the essential functions of the position without threat of harm to himself or others. See, e.g., Koshinski v. Decatur Foundry, Inc., 177 F.3d 599 (7th Cir. 1999). Consequently, we likely can expect continued litigation concerning the scope of the Echazabal decision.