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Can an employer deny a job applicant a position solely because the employee’s physical condition would increase the risk that the applicant would injure himself in performing the sought-for job? This was the question addressed recently by the 9th U.S. Circuit Court of Appeals in Echazabal v. Chevron USA Inc., F.3d (9th Cir. 2000). The issue presented to the court in Echazabalwas whether the Americans with Disabilities Act (ADA) 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. In a decision with broad implications for employers throughout the nation, the court found that the ADA’s “direct threat defense” “permits employers to impose a requirement that their employees not pose a significant risk to the health or safety of other individuals in the workplace. It does not permit employers to shut disabled individuals out of job on the ground that, by working in the jobs at issue, they may put their own health or safety at risk.” BACKGROUND Mario Echazabal began working at one of Chevron’s California oil refineries in 1972. He applied for — and was provisionally offered — a reassignment within the refinery in 1992. A pre-employment physical examination revealed that Echazabal suffered asymptomatic, chronic active hepatitis C. On the basis of this finding, the job offer was rescinded, but Echazabal continued in his prior employment. Three years later, Echazabal again applied for a transfer and again was provisionally granted the new assignment pending a physical examination. Again, the job offer was rescinded because of the risk that Echazabal’s liver would be damaged if he worked in the new position. This time, however, Chevron also removed Echazabal from his previous position so that he could be placed in “a position that eliminates his exposure to solvent/chemicals.” The District Court granted summary judgment to Chevron, and Echazabal subsequently appealed. ADA ‘DIRECT THREAT’ DEFENSE The ADA provides that “it may be a defense to a charge of discrimination … that an alleged application of qualifications standards, tests, or selection criteria that screen out … an individual with a disability has been shown to be job-related and consistent with business necessity ….” See 42 U.S.C. Section 12113(a). The Act goes on to define “qualification standards” as including “a requirement that an individual shall not pose a direct threat to the health or safety of other individuals in the workplace.” The Equal Employment Opportunity Commission (EEOC)’s regulations to the ADA expand the definition of “qualification standard” to 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.” See 29 C.F.R. Section 1630.2(r). EEOC REGULATIONS Chevron argued that, despite the seemingly plain language of the ADA, the court should defer to the EEOC’s contrary interpretation of the act. The court firmly rejected this argument on the grounds that “on its face, the [direct threat] provision does not include direct threats to the health or safety of the disabled individual himself. Moreover, 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.” In dicta, the 9th Circuit included a lengthy discussion of the ADA’s legislative history which it found supported the conclusion “that the direct provision does not include threats to oneself.” The court characterized Chevron’s attitude towards Echazabal as “paternalistic” and found that “the ADA was designed in part to prohibit discrimination against individuals with disabilities that takes the form of paternalism.” To this end, the court cited to the United States Supreme Court’s decision in UAW v. Johnson Controls Inc., 499 U.S. 187 (1991), in which 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 Johnson Controlsdecision was in the context of sex discrimination under Title VII, the court found the basis for the decision compelling in an ADA context. The Johnson Controlsdecision was also cited by the court in rejecting Chevron’s argument that placing Echazabal in a potentially dangerous situation would expose it to increased tort liability. The Echazabalcourt noted the Supreme Court’s suggestion that “state tort law would be preempted 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 finally sought to circumvent the “direct threat” issues by arguing that Echazabal’s liver condition made him not “otherwise qualified” to perform the job at issue. As evidence of this, Chevron referred to its job description which “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 “extract usable petroleum products from . . . crude oil.” Chevron was found to use “definitional sleight-of-hand” by adding “a prohibited condition to [the] actual job functions when it asserts that the job functions at the . . . unit consist of performing the actions that help keep the unit running without posing a risk to oneself.” The Echazabalcourt is the first appellate court to discuss at length the EEOC’s regulation permitting a direct threat defense where an individual poses a threat only to his or her own health or safety. While other appellate courts have referred to the “direct threat” defense as including threats to oneself ( LaChance v. Duffy’s Draft House Inc., 146 F.3d 832 [11th Cir. 1998], EEOC v. Amego Inc., 110 F.3d 135 [1st Cir. 1997]), these decisions included no discussion of the statutory language versus the regulations. In Moses v. American Nonwovens Inc., 97 F.3d 446 (11th Cir. 1996), the 11th U.S. Circuit Court of Appeals held that “an employer may fire a disabled employee if the disability renders the employee a ‘direct threat’ to his own health or safety.” The Mosescourt went on to grant summary judgment in favor of the employer where it found that the employee’s tasks “presented grave risks to an employee with a seizure disorder.” No court in the 3rd Circuit has addressed this aspect of the “direct threat” defense. In fact, the 3rd Circuit itself has never addressed in detail any aspect of the “direct threat” provisions of the ADA. EMPLOYERS IN DIFFICULT POSITION The practical effect of the Echazabaldecision is to present employers with a potential “Hobson’s choice.” For example, an employer may learn during a post-offer, pre-employment examination that an employee on a loading dock has a back condition which, in the doctor’s opinion, will disable the employee at some point in the future. Assuming that the physician expresses certainty in this opinion, thereby alleviating the argument that the risk of future harm is “speculative,” the employer faces a certain workers’ compensation claim when hiring this employee. Under Echazabal, the employer cannot take this certain harm into consideration when making its employment decision. Rather, it is likely the most that the employer can do is to discuss the situation with the applicant in order to advise him or her of the risks involved. The employer may even wish to advise the applicant of additional positions where the risk of harm would be reduced or eliminated. However, if the applicant or employee chooses the original position, even while aware of the risks involved, Echazabalteaches that the employee must be placed in the position. Some commentators have recommended that employers make personal safety an “essential function” of positions in the workplace. In this way, it has been suggested, the employer would make personal safety a job requirement which the applicant would not be able to fulfill. This is a dubious tactic on a number of grounds. Initially, this argument was specifically rejected by the Echazabalcourt. The court noted that “were we to ignore the limits of the actual functions of the job at issue and permit Chevron to add to those functions any condition it chooses to impose in its written job description, the term ‘essential function’ would be rendered meaningless.” Secondly, the 3rd Circuit has declined to “apply conclusive effect to either [an employer's] job description or [its] judgment as to whether” any particular task is essential to an employee’s job. See Deane v. Pocono Medical Center, 142 F.3d 138, 148 (3d. Cir. 1998). The EEOC’s regulations provide that whether a particular function is essential “is a factual determination that must be made on a case by case basis [on the basis of] all relevant evidence.” In short, it is unlikely that an employer’s classification of “personal safety” as an essential element of a job would be dispositive. Sid Steinberg is a partner in Philadelphia’s Post & Schell‘s directors and officers litigation group. He concentrates his national litigation and consulting practice in the field of employment and employee relations law. Steinberg has lectured extensively on all aspects of employment law, including Title VII, the FMLA and the ADA.

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