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Until recently, an employer could comfortably deny a position to an employee or prospective employee because they posed a direct threat to their own health and safety. A recent decision from the 9th U.S. Circuit Court of Appeals, Echazabal v. Chevron USA Inc., 226 F.3d 1063 (9th Cir. 2000), has cast considerable doubt on the permissibility of this common employer practice. The question presented to the court in Echazabal was whether the Americans with Disabilities Act permits an employer to deny an applicant a position or remove an employee from his or her job because the individual poses a “direct threat” of harm to his or her own safety but not to the health or safety of other persons in the workplace. In a decision with broad implications for employers throughout the nation, and which may find its way to the Supreme Court, the 9th Circuit concluded that employers cannot make such a decision. BACKGROUND OF ECHAZABAL In 1972, Mario Echazabal began working at a Chevron oil refinery in California in the coker unit. Echazabal was never employed by Chevron itself, but by various maintenance firms that contracted with Chevron to perform work at its refinery. In 1995, Echazabal submitted an application to work directly for Chevron at the same refinery and at the same coker unit where he had worked for more than 20 years. Chevron made Echazabal an offer of employment contingent on his passing a pre-employment physical examination. Echazabal failed the exam when it revealed that his 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 solvent and chemicals present in the coker unit. Chevron thus rescinded its job offer to Echazabal. Chevron also removed Echazabal from his previous position so that he could be placed in a position in which he would not be exposed to solvents and chemicals. Ultimately, he was not permitted to return to the refinery. After losing his job, Echazabal filed a complaint with state court alleging, among other things, that Chevron had discriminated against him on the basis of a disability, in violation of the ADA. The case was later removed to the United States District Court for the Central District of California. Chevron’s primary argument was that it was justified in not hiring Echazabal because it reasonably concluded the work would pose a direct threat to his own health. Although the ADA prohibits employers from discriminating against individuals with disabilities, Title I of the Act allows employers to impose as a qualification standard “that an individual shall not pose a direct threat to the health or safety of other individuals in the workplace.” 42 U.S.C. s. 12113. (Emphasis added.) The implementing regulations of Title I of the ADA promulgated by the Equal Employment Opportunity Commission expand this definition of “qualification standard” and provide that this qualification standard may include a requirement “that an individual not pose a direct threat to the health or safety of the individual or others in the workplace.” 29 C.F.R. s. 1630.15 (b)(2). (Emphasis added.) The regulations define direct threat as “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.” Agreeing with Chevron’s argument, the district court granted summary judgment. Echazabal appealed. On appeal, the singular issue before the court was whether the direct-threat defense available to employers under the ADA applies to employees, or prospective employees, who pose a direct threat to their own health or safety, but not to the health or safety of other persons in the workplace. The 9th Circuit held that it was not. 9TH CIRCUIT DECISION Judge Stephen Reinhardt writing for the court stated: “Conscious of the history of paternalistic rules that have often excluded disabled individuals from the workplace, Congress concluded that disabled persons should be afforded the opportunity to decide for themselves what risks to undertake.” Judges Myron H. Bright and Stephen S. Trott joined in the opinion. Reversing summary judgment for Chevron, the judges concluded that the ADA’s direct-threat clause should be interpreted as written in the ADA. The language of the direct-threat defense plainly does not include “self-threats” to disabled individuals. The court wrote that “by specifying only threats to other individuals in the workplace, the statute makes it clear that threats to other persons, including the disabled individual himself, are not included within the scope of the defense.” To support its holding, the 9th Circuit included a lengthy discussion of the ADA’s legislative history that it found supported the conclusion “that the direct provision does not include threats to oneself.” Examining the statutory language on the direct-threat defense, the court held: “On its face, the provision does not include direct threats to the health or safety of the disabled individual himself.” In fact, the court conducted a search for the term “direct threat” and found it used hundreds of times throughout the final conference report, various committee reports and hearings and the floor debate. However, the court wrote that “not once is the term accompanied by a reference to threats to the disabled person himself.” The court further noted that the direct-threat provision was intended to codify the U.S. Supreme Court’s holding in School Bd. of Nassau County v. Arline, 480 U.S. 273 (1987) (a Rehabilitation Act case), that direct threat means “a significant risk to the health or safety of others that cannot be eliminated by reasonable accommodation.” The court also cited a statement made by Sen. Edward Kennedy, D.-Mass., in discussing why the direct-threat provision was limited to threats to “other coworkers or customers.” Kennedy asserted that “employers may not deny a person an employment opportunity based on paternalistic concerns regarding the person’s health,” such as refusing to hire a person who has the HIV virus to protect the person from exposure to opportunistic diseases. The 9th Circuit further noted that the Supreme Court rejected paternalistic employment policies that constituted sex discrimination in violation of Title VII of the 1964 Civil Rights Act in Dothard v. Rawlinson, 433 U.S. 321 (1977), and United Auto Workers v. Johnson Controls Inc., 499 U.S. 187 (1991). The Supreme Court found in both cases that women have the right to decide for themselves whether a job is too dangerous for them. In Johnson Controls, for example, the Supreme Court held that threats of lead exposure to female employees’ own reproductive health did not justify the employer’s decision to exclude women from certain positions at a battery-manufacturing plant. Although the decision in Johnson Controls was in the context of sex discrimination under Title VII, the Court found the basis for the decision compelling in an ADA context. In addition, the Echazabal court examined the judicial precedent under this direct-threat defense noting that three other circuits had referred to the direct-threat defense as including threats to oneself. EEOC v. Amego Inc., 110 F.3d 135 (1st Cir. 1997); Moses v. America Nonwovens, Inc., 97 F.3d 446, 447 (5th Cir. 1996); and LaChance v. Duffy’s Draft House Inc., 146 F.3d 832 (11th Cir. 1998). However, the Echazabal court dismissed the 1st and 11th Circuit decisions because neither contained any discussion of either the statutory language or the regulations. The Echabazal court further rejected the Moses decision, observing that the Moses court merely made the statement in dicta and never gave an explanation for its holding. In response to Chevron’s argument that forcing employers to hire employees who pose a risk to their own health or safety would unfairly expose employers to tort liability, the court stated that it could not consider the issue because Chevron did not show that it was facing any costs from tort liability. Moreover, the court pointed out that the Supreme Court in Johnson Controls suggested that state tort law would be pre-empted to the extent that it interfered with federal anti-discrimination law. The Echazabal court also noted that “Chevron’s concern over an award of damages reflects a fear that hiring a disabled individual will cost more than hiring an individual without any disabilities. The extra cost of employing disabled individuals does not in itself provide an affirmative defense to a discriminatory refusal to hire those individuals.” Chevron’s final argument was that Echazabal’s liver condition precluded him from being “otherwise qualified” to perform the job as a coker. As evidence of this, Chevron referred to its job description that “incorporated the need for an employee to be able to tolerate an environment including, among other things, hydrocarbon liquids and vapors, petroleum solvents and oils.” The court rejected this argument on the grounds that the essential function of Echazabal’s job was to keep the coker unit running properly. The court wrote, “While we give consideration to an employer’s judgment as to what functions of a job are essential, . . . an employer may not turn every condition of employment which it elects to adopt into a job function, let alone an essential job function, merely by including it in a job description.” The court found no evidence that Echazabal’s disability ever affected his ability to do the job as a contractor employee and noted that Chevron twice made contingent offers to him to work directly for Chevron and therefore concluded that Chevron’s reasons for refusing to hire Echazabal clearly were not related to his ability to perform the essential functions of the job. JUDGE SWITCHED SIDES Adding to the interest in Echazabal, Judge Stephen S. Trott, on Sept. 26, 2000, amended the court’s earlier decision to add his dissenting opinion. Trott asserted that Chevron had satisfied the requirements for proving the direct- threat defense. He agreed with an EEOC regulation providing that “the term �qualification standard’ may include a requirement that an individual shall not pose a direct threat to the health or safety of the individual or others in the workplace” as consistent with statutory law. Trott also agreed with the district court that Echazabal was not qualified to perform the job. Trott stated, “Why? Because the job most probably will endanger his life. I do not understand how we can claim he can perform the essential functions of the position he seeks when precisely because of his disability, those functions may kill him. To ignore this reality is bizarre.” Finally, Trott found that Chevron also satisfied the “undue hardship” defense. Trott noted, “I believe it would be an undue hardship to require an employer to place an employee in a life-threatening situation. Such a rule would require employers knowingly to endanger workers. The legal peril involved is obvious, and is a simple human to human matter, such a moral burden is unconscionable.” EFFECT ON NEW JERSEY EMPLOYERS New Jersey has its own disability discrimination law — the New Jersey Law Against Discrimination. In contrast to the ADA’s definition of the word “disabled,” NJLAD utilizes the term “handicap,” and provides a more expansive definition of that which is considered a covered condition. The NJLAD statutory language states that an employer may permissibly reject an applicant for a particular job if the employer can demonstrate that the “nature and extent of the handicap reasonably precludes the performance of the particular employment.” N.J.S.A. 10:5-4.1. New Jersey courts have interpreted this statute to mean that an employer can deny employment based on the supported opinion that the employee may risk death or serious injury to himself and others. Panettieri v. C.V. Hill Refrigeration, 159 N.J. Super. 472 (App. Div. 1978). In Panettieri, the plaintiff was denied re-employment with the company because he had a heart attack and the company believed that his weakened heart muscles made him unqualified for the physically demanding job for which he applied. The court rejected the company’s argument based on the fact that there was little evidence to support the company’s belief. However, in reaching its decision the court recognized that “quite obviously, a materially enhanced risk of injury or death is a consideration in determining whether an employee’s handicap reasonably preclude the performance of the particular employment.” The New Jersey Supreme Court has followed the Panettieri court’s reasoning. In Andersen v. Exxon Co., 89 N.J. 483 (1982), the Court held that an employer does not discriminate against the physically handicapped in rejecting an applicant so long as the employer has reasonably arrived at its opinion that the applicant is unable to perform the job either because he is generally unqualified or because he has a handicap which in fact impedes job performance. In Andersen, the company suggested that the applicant was unqualified because, if hired, he would further injure his back. Although the Court did not directly address the direct-threat defense, it ultimately concluded that the company lacked sufficient objective evidence that the applicant would injure his back. Both Andersen and Panettieri were decided before the New Jersey Administrative Code issued regulations regarding this issue. The code now specifically provides: Refusal to select a handicapped individual may be lawful where it can be demonstrated that the employment of the handicapped person in a particular position would presently be hazardous to the safety or health of such individual, other employees, clients or customers. Such a decision must be based upon an objective standard supported by factual or scientifically validated evidence, rather than on the basis of general assumptions that a particular handicap would create a hazard to the safety or health of such individual, other employees, clients or customers. A “hazard” to the handicapped person is a materially enhanced risk of serious harm. N.J.A.C. 13:13-2.8. (Emphasis added.) Thus it seems clear that if a claim were brought solely under the NJLAD and an employer could justify its belief that there was a direct threat with objective evidence, the employer could permissibly decline employment to that individual. However, New Jersey employers need to remember that the NJLAD only applies to state claims of discrimination and not to federal. Since there are no reported 3rd Circuit or district court decisions directly addressing this issue, New Jersey employers must still proceed with caution because the Echazabal decision raises the specter that failure to hire a disabled individual for a job that would further disable him will lead to liability under the ADA.

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