Editor’s Note – Mark Lies II is a labor and employment law attorney and partner with the Chicago, IL, law firm of Seyfarth Shaw. Legal topics provide general information, not specific legal advice. Individual circumstances may limit or modify this information.
On June 10, 2002, the Supreme Court of the United States in Chevron U.S.A. Inc. v. Echazabal upheld the right of an employer to refuse to hire (or to take other disciplinary action involving) an employee who may have a “disability” under the Americans with Disabilities Act (ADA) when the employee’s “disability” would pose a “direct threat” to the employee’s health or safety. This decision is very important to employers because it presents an opportunity to refuse to hire or to remove an otherwise “disabled” employee from employment, without violating the ADA.
Background
Mario Echazabal had worked since 1972 for independent contractors at a Chevron refinery. He twice applied for refinery jobs with Chevron, but was rejected because post-offer medical exams showed he had Hepatitis C. In the opinion of Chevron’s doctors, this condition would be aggravated by continued exposure to toxins at the refinery. After Echazabal applied the second time, Chevron requested that the independent contractor reassign him or remove him from the refinery altogether. The contractor thereafter laid Echazabal off.
When Echazabal sued Chevron under the 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 own health. The district court granted Chevron summary judgment, but the Ninth Circuit reversed, holding that the EEOC regulation exceeded the scope of permissible rulemaking under the ADA.
The Supreme Court took the case to determine whether the ADA permitted EEOC’s regulation allowing an employer to establish “direct threat” by showing risk to the health or safety of the individual with a disability.
Decision
On behalf of a unanimous court, Justice David Souter wrote that the EEOC’s regulation properly authorized an employer to deny employment to an individual whose job performance would endanger his own health. The court began by noting that the ADA forbids “using qualification standards…that screen out or tend to screen out [such] an individual,” but permits an employer to use a qualification standard “shown to be job-related…and…consistent with business necessity,” which “may include a requirement that an individual shall not pose a direct threat to the health or safety of other individuals in the workplace.” The EEOC’s regulation carries the defense one step further, allowing employers to screen out disabled individuals for job risks to their own health or safety.
The court rejected the view that by expressly recognizing only threats to others, the statutory language precluded EEOC’s regulation. Rather, the threat-to-others provision is a non-exclusive example of qualifications that are lawfully “job-related and consistent with business necessity.”
The court also noted that the EEOC regulations help employers avoid the risk of violating the Occupational Safety and Health Act (OSHA) of 1970. 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 “asking for trouble” under OSHA if it employed someone knowing that essential job functions endangered the individual’s health.
The court also found the EEOC regulation consistent with ADA’s prohibition of disability-based paternalism. The ADA bars “refusals to give an even break to classes of disabled people, while claiming to act for their own good in reliance on untested and pretextual stereotypes.” EEOC’s regulation disallows this by demanding a particularized inquiry into the harms an employee would likely face (in order for the employer to prove direct threat based on risk to self).
Comments
Most courts have held that, because it is an affirmative defense, the burden of proving “direct threat” falls on the employer. This case does not change that, nor does it make proving the defense any easier. Rather, it simply confirms the view of EEOC (and most courts which had addressed the issue) that the direct threat defense can be established by showing risk to the disabled individual, instead of or on top of risk to others.
Employers concerned about wrongful injury claims and worker’s compensation costs can take heart from Chevron in that the court permits employers to consider the employee’s own health and safety, as well as health and safety of others.
However, any employment action based on risk to the employee’s own health or safety must meet the direct threat considerations, including: 1) Is there a significant risk of substantial harm? 2) Can the risk be eliminated or reduced by a reasonable accommodation? 3) Is the assessment of risk based on an individualized assessment of the individual’s present ability to perform essential job functions? 4) Is the assessment based on the most current medical knowledge available?
Conclusion
This decision favors the employer community, continuing a pro-employer trend in the courts under the ADA. The decision highlights the individualized, case-by-case determinations required by the statute. That means at least some of the uncertainty that has vexed employers working to comply with the ADA will continue for the foreseeable future.
Obviously, before making any employment decision involving an employee with a serious health condition, the employer must conduct a thorough analysis to determine whether there is sufficient evidence to establish the “direct threat” defense.
Labor and the Law - August 2002 Render