What the court said on Chevron v. Echazabal

Does a disabled employee have the right to put his health at risk on the job? Here's the gist of the Supreme Court's reasoning on that question.

Mario Echazabal worked for an independent contractor at one of Chevron U.S.A. Inc.'s oil refineries. He applied for a position that Chevron refused to give him because of a liver condition that its doctors said would be exacerbated by continued exposure to toxins at the refinery. In turn, the contractor employing Echazabal laid him off in response to Chevron's request that it reassign him to a job without exposure to toxins or remove him from the refinery. Echazabal filed suit, that Chevron's actions violated the Americans with Disabilities Act of 1990 (ADA). Chevron defended under an Equal Employment Opportunity Commission (EEOC) regulation permitting the defense that a worker's disability on the job would pose a direct threat to his health. The District Court granted Chevron summary judgment, but the Ninth Circuit reversed. The U.S. Supreme Court ruled unanimously in favor of Chevron.

Here are highlights from the decision as delivered by Justice David Souter:

(a) The ADA's discrimination definition allows for an affirmative defense of a company's decision that qualifies as being job-related and consistent with business necessity. That may include a requirement 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 EEOC's regulation carries the defense one step further, allowing an employer to screen out a potential worker with a disability for risks on the job to his own health or safety.

(b) Echazabal relies on the canon expressio unius exclusio alterius (meaning that expressing one item of an associated group excludes another left unmentioned) for his argument that the ADA — by recognizing only threats to others — precludes the EEOC regulation as a matter of law.

The first strike against the expression-exclusion rule here is in the statute, which includes the threat-to-others provision as an example of legitimate qualifications that are job-related and consistent with business necessity. These broad defensive categories give an agency a good deal of discretion in setting the limits of permissible qualification standards.

Strike two is the failure to identify any series of terms or things that should be understood to go hand in hand to support the argument that the term not mentioned was deliberately excluded. Echazabal claims that Congress' adoption only of the threat-to-others exception in the ADA was a deliberate omission of the threat-to-self exception included in the EEOC's regulation implementing the precursor Rehabilitation Act of 1973. But this is not an unequivocal implication of congressional intent. The EEOC was not the only agency interpreting the Rehabilitation Act, so its regulation did not establish a clear, standard pairing of threats to self and others. It is likely that Congress used such language in the ADA knowing what the EEOC had made of that language under the earlier statute.

The third strike is simply that there is no apparent stopping point to the argument that, by specifying a threat-to-others defense, Congress intended to imply whose safety could not be considered. 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?

(c) Since Congress has not spoken exhaustively on threats to a worker's own health, the regulation can claim adherence under the rule in Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc., (467 U.S. 837, 843), so long as it makes sense of the statutory defense for qualification standards that are job-related and consistent with business necessity. Chevron's reasons for claiming that the regulation is reasonable include, among other things, that it allows Chevron to avoid the risk of violating the Occupational Safety and Health Act of 1970 (OSHA).

Whether an employer would be liable under OSHA for hiring an individual who consents to a job's particular dangers is an open question, but the employer would be courting trouble under OSHA. His decision to hire would put Congress' policy in the ADA (a disabled individual's right to operate on equal terms within the workplace), at loggerheads with the competing policy of OSHA (to ensure the safety of each and every worker).

Courts would, of course, resolve the tension if there were no agency action, but the EEOC's resolution exemplifies the substantive choices that agencies are expected to make when Congress leaves the intersection of competing objectives both imprecisely marked and subject to the administrative leeway.

Nor can the EEOC's resolution be fairly called unreasonable as allowing the kind of workplace paternalism the ADA was meant to outlaw. It is true that Congress had paternalism in its sights when it passed the ADA, but the EE

OC has taken this to mean that Congress was trying to get at refusals to give an even break to disabled people, while claiming to act for their own good in reliance on stereotypes. Its regulation disallows just this sort of sham protection, by demanding a particularized enquiry into the harms the employee would probably face. 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. The EEOC was acting reasonably when it saw a difference between rejecting workplace paternalism and ignoring documented risks to the employee himself, even if the employee would take his chances for the sake of getting a job.

The provision made a conclusion clear that might otherwise have been fought over in litigation or administrative rulemaking. Pp.1013.

Souter, J., delivered the opinion for a unanimous Court.

Resource Links:

Americans with Disabilities Act (ADA) http://www.usdoj.gov/crt/ada/adahom1.htm

Equal Employment Opportunity Commission (EEOC)http://www.eeoc.gov/

Occupational Safety and Health Act of 1970 (OSHA)http://www.osha.gov/

What the court said on Chevron v. Echazabal.

Business and Health

2002;8.