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Echazabal. The name has been in the employment law lexicon long enough to take on single name status — like Pele or Madonna. When last Mr. Echazabal entered our collective consciousness, his claim of disability discrimination was being reversed by the U.S. Supreme Court on the grounds that the ADA’s “direct threat” defense included a “direct threat of harm to oneself” in addition to possible harm to others. Specifically, the Court found that Echazabal’s exposure to toxins if he were hired to work at Chevron’s oil refinery would pose a direct threat of harm to his own health. This was not required of Chevron and they properly denied him the sought for position. On remand, the 9th U.S. Circuit Court of Appeals effectively said: “not so fast.” In its decision of July 23, the court found that summary judgment in favor of Chevron should be reversed because there was a question of fact as to whether the company had made a reasonable, individualized judgment that the job for which Echazabal had applied would, in fact, endanger his health. THE UNDERLYING DISPUTE To recap the facts of the case: Mario Echazabal had worked as a contractor at Chevron’s refinery in El Segundo, California from 1972 to 1992, when he sought to become employed directly by Chevron. He was rejected for employment after a physical examination revealed that he had elevated liver enzymes and it was determined that his health might be at risk. Echazabal then began treatment with his personal physician for Hepatitis C. He continued to work for a contractor at the facility until 1995, when he again applied for work with Chevron. At that time, he was again examined by Chevron’s doctor and, after consultation with other doctors, including Echazabal’s treating physician, Chevron rejected his application based on a finding that his liver was damaged and his health would be at risk if he continued working in the refinery. This time, unlike the first rejection, Echazabal also lost his contractor job. He brought suit against Chevron claiming that he had been discriminated against under the ADA. The district court granted Chevron’s motion for summary judgment on the grounds that working in the refinery could pose a “direct threat” to his own health. The appellate court reversed and the Supreme Court unanimously agreed with the district court. DIRECT THREAT REQUIREMENTS DIVIDE THE PANEL The opinion by the divided panel reads like a dialogue between the majority and the dissent. The critical question in the case was whether Chevron had enough medical information at the time it determined that Echazabal was a potential health risk. In 1992, at the time of Echazabal’s first application, Chevron’s in-house physician, who was Board Certified in “preventative occupational medicine,” found Echazabal’s liver function to be “grossly abnormal.” Echazabal, it should be remembered, began treatment for Hepatitis C, which was first discovered by the Chevron doctor. This determination was confirmed by a second Chevron doctor at the time of the 1995 application. The Chevron doctor then contacted Echazabal’s treating physician, who agreed that Echazabal should not have the refinery job based upon health concerns. Two other physicians, including a Board Certified specialist in Occupational Medicine with training in toxicology agreed with Chevron and Echazabal’s treating physician. In response to summary judgment, Echazabal offered the opinions of two liver specialists who opined that the medical findings and analysis of Chevron were unfounded and simply wrong. The two experts said that the tests relied upon by the Chevron doctors did not indicate that Echazabal was at any heightened risk compared with the average worker. CHEVRON HAD NOT DONE ENOUGH The majority reviewed all that Chevron had done and concluded that it had failed to consider the “severity, imminence and potential likelihood of harm” and that it had not demonstrated the necessary “significant risk of substantial harm” to establish the direct threat. The medical factors are to be “based on a reasonable medical judgment that relies on the most current medical knowledge and/or the best available objective evidence.” Chevron’s failure was highlighted by what the majority considered to be the very specific findings of Echazabal’s experts, in comparison with the more general findings of the Chevron and treating physicians. The dissent focused on whether Chevron had made its decision based upon the “best available objective evidence.” It rather caustically observed that Echazabal’s experts “surfaced for the first time in opposition to Chevron’s motion for summary judgment” but was not raised contemporaneously by Echazabal as the decision on his employment was being made. GETTING IT ‘RIGHT’ OR BEING ‘REASONABLE’ Essentially, the dispute between the majority and dissent comes down to whether the employer had an obligation to get it objectively “right” or whether the employer could act reasonably based upon available evidence. It is hard to argue that the employer did not act reasonably when the employee’s own physician says that his patient should not do the job. Even here, however, questions were raised as to what the treating physician knew about the job’s requirements. The decision teaches that, when making a “direct threat” determination, employers should ensure that the physicians upon whom they are relying are Board Certified in the field of medicine at issue and that, if possible, a third party “expert” should be involved in the medical review on which the employer’s decision would be based. This “belt and suspenders” approach will ensure that “direct threat” decisions are well-founded and defensible, at least until this matter is re-considered by the Supreme Court. Sidney R. Steinberg is a shareholder in the business law and litigation department of Post & Schell, www.postschell.com). He concentrates his national litigation and consulting practice in the field of employment and employee relations law and may be reached [email protected]

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