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Richard Rahm went straight to work. In a surprise decision, the 9th U.S. Circuit Court of Appeals had just ruled that employers can’t deny jobs to disabled workers even though the work may pose a “direct threat” to the worker’s health and safety. So the employment associate at San Francisco’s Orrick, Herrington & Sutcliffe hunkered down at his computer to bang out an “Employment Law Alert,” an Orrick newsletter that keeps the firm’s corporate clients in the loop on big court decisions. Like a number of defense-side lawyers he was flummoxed by the 9th Circuit opinion, and he immediately sounded the alarm: “It seems contradictory to some basic principles of employment law,” Rahm said of the decision. Before the opinion came out, few attorneys were paying attention to the case. The strongly pro-plaintiff May 23 decision, Echazabel v. Chevron, 00 C.D.O.S. 4028, thus caught attorneys by surprise, and raised eyebrows on both sides of the employment law bar. Plaintiffs’ attorneys, meanwhile, are hailing the opinion as an overdue affirmation of a worker’s right under the Americans with Disability Act to exercise free will and determination. “What the ADA is all about is independent freedom,” said Noah Lebowitz, a plaintiffs’ attorney at San Francisco’s Schneider & McCormac. “It’s a civil rights law.” But employment defense lawyers say the decision puts their clients in a troubling moral and legal dilemma: hire someone for a job that could hurt them, or face a discrimination claim. They also say the 9th Circuit decision runs counter to at least three federal court of appeals decisions — which they hope will help move it to the U.S. Supreme Court. “I don’t think people were aware this case could produce this result,” said Larry Minsky, the lead plaintiff’s attorney in the case. He is from Lemaire, Faunce, Pingel & Singer in Cerritos. JOB DENIED The case stems from an incident at Chevron’s El Segundo, Calif., oil refinery in 1995. Mario Echazabal was denied a job in the refinery’s coker unit after failing a pre-employment exam. Chevron’s doctors found that Echazabal had a liver condition the company feared would worsen in the coker unit’s harsh environment. Echazabal filed suit, but lost on summary judgment in U.S. district court. But on appeal, 9th Circuit Judge Stephen Reinhardt — writing for a unanimous three-judge panel — held that Chevron could not withhold the job from Echazabal. “The principal question we consider is 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 and safety,” Reinhardt wrote in the unanimous opinion. “We conclude that it does not.” The panel also included Judges Stephen Trott and Myron Bright. Bright sat by designation from the 8th U.S. Circuit Court of Appeals. The judges said that the ADA’s direct threat clause should be understood as written. “The direct threat defense permits employers to impose a ‘requirement that an individual shall not pose a direct threat to the health and safety of other individuals in the workplace.’ “On its face, the provision does not include direct threats to the health and safety of the disabled individual himself,” Reinhardt continued. He said the legislative history of the ADA supports that conclusion and dismissed the three other federal cases that defense attorneys argue could be considered contrary to the 9th Circuit’s findings. Only one of the cases, Moses v. America Nonwovens, Inc., 97 F.3d 446, 447 (1996), “appears to have held that the defense encompasses” threats to oneself, Reinhardt conceded. But, he continued, “the Moses court provides us with no guidance.” Rather, the opinion said that in general courts have prohibited paternalistic employment policies when interpreting federal employment statutes. Reinhardt also rejected the argument that not being a threat to oneself was an “essential function” of the job. “Job functions are those acts or actions that constitute a part of the performance of the job,” Reinhardt wrote. “Chevron does nothing more than add a prohibitive condition to these actual job functions.” Plaintiffs’ attorneys applauded the decision. “It’s the most principled and detailed interpretation of the ADA,” Lebowitz said. “It’s true to the word of the ADA and its legislative history.” CRITICISM MOUNTS But Chevron’s attorney, Jon Kardassakis of Los Angeles’ Hawkins, Schnabel, Lindahl & Beck, has filed a petition for en banc review. It’s not clear if the court will take up the petition. However, Reinhardt is viewed as one of the 9th Circuit’s most liberal members, and his opinions are often at odds with the court’s more conservative justices. And Jeffrey Tanenbaum, a defense-side attorney in Littler Mendelson’s San Francisco office, criticized the court’s interpretation, saying that “either the decision is terribly wrong, or the ADA is written in a ludicrous manner. “I say that because it makes no sense to make an employer violate a federal or state health and safety law,” Tanenbaum said, referring to Occupational Safety and Health Administration statutes that require employers to provide a safe work environment for all employees. “It puts the employer in an untenable situation,” concurred Jeffrey Wohl, a defense attorney with Orrick, Herrington & Sutcliffe. “It’s a very strange decision. I think this is something the Supreme Court” will want to consider. Wohl said the decision takes away one of a handful of defenses for employers. “The decision doesn’t give you much wiggle room,” he said. Defense attorneys also point out that a direct threat to oneself appears to still be a viable defense in disability discrimination cases brought under the California Fair Employment Housing Act and the Rehabilitation Act. Despite the initial surprise about the decision, attorneys on both sides of the employment bar seem to agree that the case will likely have a minimal effect on the broad landscape of ADA. The major ADA battles will continue to be about who and what is covered under the act, and what are reasonable accommodations for disabled people. “I think this is too technical an issue to catch the public eye and have an influx of new cases,” Tanenbaum said. “Direct threat defense is not that common,” said Lebowitz. “The situation this arises from is few and far between.” And regardless of the ruling’s impact, Robert Racine, a plaintiffs’ attorney in Pasadena, Calif., said he expects defense attorneys and their clients will bounce back. Sounding alarm bells about the decision is the first step, such as Orrick’s client alert. “They’ll find a way around it; they always do,” Racine said. “Even though you won the right, they’ll make it seem like it’s a bad idea. I’ve seen it too many times.”

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