The full case caption appears at the
end of this opinion. REINHARDT, Circuit Judge: On this appeal, the principal question we consider is whether the “direct threat” defense available to employers under theAmericans with Disabilities Act applies to employees, or prospective employees, who pose a direct threat to their own healthor safety, but not to the health or safety of other persons in the workplace. We conclude that it does not. I. Mario Echazabal first began working at Chevron’ s oil refinery in El Segundo, California in 1972. Employed by variousmaintenance contractors, he worked at the refinery, primarily in the coker unit, nearly continuously until 1996, when the eventsthat gave rise to this litigation occurred. In 1992, Echazabal applied to work directly for Chevron at the same coker unit location. After determining that he wasqualified for the job, Chevron extended him an offer contingent on his passing a physical examination. A preemploymentphysical examination conducted by Chevron’ s regional physician revealed that Echazabal’ s liver was releasing certain enzymesat a higher than normal level. Based on these results, Chevron concluded that Echazabal’ s liver might be damaged by exposureto the solvents and chemicals present in the coker unit. For that reason, Chevron rescinded its job offer. Nevertheless,Echazabal continued to work for Irwin, a maintenance contractor, throughout the refinery — including at the coker unit.Chevron made no effort to have him removed from his assignment. After learning of the enzyme test results, Echazabal consulted with several doctors and eventually was diagnosed withasymptomatic, chronic active hepatitis C. Throughout his treatment, Echazabal told each physician who treated him about thetype of work that he did. In addition, at least one of his physicians was provided with a document that detailed the specificenvironmental hazards present in the vicinity of the coker unit at the refinery. None of these physicians advised Echazabal thathe should stop working at the refinery because of his medical condition. In 1995, Echazabal again applied to Chevron for a position at the coker unit. As it had done before, Chevron made Echazabala job offer that was contingent upon his passing a physical examination. Once again, Chevron eventually rescinded its job offeron the ground that there was a risk that Echazabal’ s liver would be damaged if he worked at the coker unit. Unlike in 1992,however, Chevron did not simply allow Echazabal to continue working for Irwin at the refinery. Instead, Chevron wrote Irwinand asked that it “immediately remove Mr. Echazabal from [the] refinery or place him in a position that eliminates his exposureto solvents/chemicals.” As a result, Echazabal was no longer permitted to work at the Chevron refinery. Immediately after losing his position at the refinery, Echazabal filed a complaint with the Equal Employment OpportunityCommission. He subsequently filed a complaint in state court that alleged, among other things, that both Chevron and themaintenance contractor had discriminated against him on the basis of a disability, in violation of the Americans with DisabilitiesAct (ADA). After Chevron removed the action to federal court, the district court granted Chevron’ s motion for summaryjudgment on all of Echazabal’ s claims. The court then stayed the proceedings between Echazabal and the maintenancecontractor (it had denied the contractor’ s summary judgment motion) and certified for appeal its grant of summary judgment infavor of Chevron.
[FOOTNOTE 1] II. On appeal, Chevron argues that it may defend its decision not to hire Echazabal on the ground that it reasonably concludedthat Echazabal would pose a direct threat to his own health if he worked at the refinery. It acknowledges that, with respect to”otherwise qualified” individuals, the ADA prohibits employers from “using qualification standards . . . that screen out or tend toscreen out an individual with a disability or a class of individuals with disabilities.” 42 U.S.C. � 12112(b)(6) (1994); see also42 U.S.C. � 12113(a). Chevron contends, however, that its refusal to hire Echazabal falls under an affirmative defense that theADA provides to this charge of discrimination. In the “defenses” section of the Act, the statute provides that an employer mayimpose, as a “qualification standard,” “a requirement that an individual shall not pose a direct threat to the health or safety ofother individuals in the workplace.” 42 U.S.C. � 12113 (emphasis added).
[FOOTNOTE 2] The question before us is whether the “direct threat” defense includes threats to one’ s own health or safety. That is, we mustdecide whether the provision permits employers to refuse to hire an applicant on the ground that the individual, while posing nothreat to the health or safety of other individuals in the workplace, poses a direct threat to his own health or safety. As we notedrecently in Nunes v. Wal-Mart Stores, Inc., 164 F.3d 1243 (9th Cir. 1999), “[w]e have not yet ruled on whether the directthreat defense includes threats to one’ s self.”
[FOOTNOTE 3] Id. at 1247 n.1. In addition to being a question of firstimpression in this Circuit, the issue has received almost no treatment in other Circuits. While several cases do state, in passingdicta, that the direct threat defense includes threats to oneself, see 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); Daugherty v. City of El Paso, 56 F.3d 695 (5th Cir.1995), only the Eleventh Circuit appears to have held that the defense encompasses such threats. See Moses v. AmericaNonwovens, Inc., 97 F.3d 446, 447 (11th Cir. 1996). The Moses court provides us with no guidance, however, because itgives no explanation for its holding. Instead, it simply asserts, without analysis, that the ADA’ s direct threat defense applies tothreats to the disabled individual himself.
[FOOTNOTE 4] In order to resolve the scope of the direct threat defense, we turn first to the language of provision itself. Here, that language isdispositive. The direct threat defense permits employers to impose a “requirement that an individual shall not pose a directthreat to the health or safety of other individuals in the workplace.” On its face, the provision does not include direct threats tothe health or safety of the disabled individual himself. Moreover, by specifying only threats to “other individuals in theworkplace,” the statute makes it clear that threats to other persons — including the disabled individual himself — are notincluded within the scope of the defense.
[FOOTNOTE 5] Expressio unius est exclusio alterius. Finally, the obvious readingof the direct threat defense as not including threats to oneself is supported by the definitional section of Title I, which states that”[t]he term ‘ direct threat’ means a significant risk to the health or safety of others that cannot be eliminated by reasonableaccommodation.” 42 U.S.C. � 12111(3) (emphasis added). The fact that the statute consistently defines the direct threatdefense to include only threats to others eliminates any possibility that Congress committed a drafting error when it omitted fromthe defense threats to the disabled individual himself. Cf. United States Trustee v. Garvey, Schubert & Barer (In re CenturyCleaning Servs., Inc.), 195 F.3d 1053, 1057-58 (9th Cir. 1999). For these reasons, we conclude that the language of thedirect threat defense plainly does not include threats to the disabled individual himself. Although we need not rely on it, the legislative history of the ADA also supports the conclusion that the direct threat provisiondoes not include threats to oneself. The term “direct threat” is used hundreds of times throughout the ADA’ s legislative history– in the final conference report, the various committee reports and hearings, and the floor debate. See, e.g., H.R. Conf. Rep.No. 101-596, at 57, 60, 77, 84 (1990), reprinted in 1990 U.S.C.C.A.N. 565, 566, 569, 586, 593. In nearly every instancein which the term appears, it is accompanied by a reference to the threat to “others” or to “other individuals in the workplace.”Not once is the term accompanied by a reference to threats to the disabled person himself. In addition, both the Report of theHouse Judiciary in the Report of the Committee on Education and Labor explain that the direct threat provision is intended tocodify the Supreme Court’ s holding in School Bd. of Nassau County v. Arline, 480 U.S. 273 (1987) — a case that defines”[t]he term ‘ direct threat’ [to] mean[ ] a significant risk to the health or safety of others that cannot be eliminated by reasonableaccommodation.” H.R. Rep. No. 101-485, pt. 3, at 34, 45-46 (1990) (emphasis added) (citing Arline), reprinted in 1990U.S.C.C.A.N. 445, 457; see also H.R. Rep. No. 101-485, pt. 2, at 76, reprinted in 1990 U.S.C.C.A.N. 303, 359. Whilethe House Judiciary Report notes that the ADA extends the Arline standard “to all individuals with disabilities, and not simplyto those with contagious diseases or infections,” H.R. Rep. No. 101-485, pt. 3, at 45, reprinted in 1990 U.S.C.C.A.N. 445,at 468, it says nothing about extending the standard to cover a disabled person whose employment would be harmful to himselfas opposed to other individuals. Finally, the following statement made by Senator Kennedy, a co-sponsor of the ADA, alsostrongly bolsters our reading of the statute: The ADA provides that a valid qualification standard is that a person not pose a direct threat to the health or safety of other individuals in the workplace — that is, to othercoworkers or customers . . . . It is important, however, that the ADA specifically refers to health and safety threats to others.Under the ADA, employers may not deny a person an employment opportunity based on paternalistic concerns regarding theperson’ s health. For example, an employer could not use as an excuse for not hiring a person with HIV disease the claim thatthe employer was simply “protecting the individual” from opportunistic diseases to which the individual might be exposed. Thatis a concern that should rightfully be dealt with by the individual, in consultation with his or her private physician. 136 Cong. Rec. S9684-03, at S9697 (1990).
[FOOTNOTE 6] In short, the legislative history convincingly supports theunambiguous wording of the direct threat defense. Congress’ s decision not to include threats to one’ s own health or safety in the direct threat defense makes good sense in lightof the principles that underlie the ADA in particular and federal employment discrimination law in general. As Senator Kennedynoted in the statement quoted above, the ADA was designed in part to prohibit discrimination against individuals withdisabilities that takes the form of paternalism. This goal is codified in the Act itself: in the “Findings” section of the ADA,Congress concluded that “overprotective rules and policies” are one form of discrimination confronting individuals withdisabilities. 42 U.S.C. � 12101(a)(5); see also H.R. Rep. No. 101-485, pt. 2, at 74, reprinted in 1990 U.S.C.C.A.N. 303,356 (noting that “[p]aternalism is perhaps the most pervasive form of discrimination for people with disabilities” ). More generally, courts have interpreted federal employment discrimination statutes to prohibit paternalistic employmentpolicies. The Supreme Court’ s interpretation of Title VII in Dothard v. Rawlinson, 433 U.S. 321 (1977), and InternationalUnion, United Auto. Aerospace & Agric. Implement Workers of Am., UAW v. Johnson Controls, Inc., 499 U.S. 187(1991), provides a good example of this principle. In Dothard, the Court stated that “[i]n the usual case, the argument that aparticular job is too dangerous for women may appropriately be met by the rejoinder that it is the purpose of Title VII to allowthe individual woman to make that choice for herself.” 433 U.S. at 335. While the Court permitted the employer in that case tohire only male guards in contact areas of maximum security male penitentiaries, it did so only because more was at stake thanthe “individual woman’ s decision to weigh and accept the risks of employment.” Id. Sex was a bona fide occupationalqualification, the Court concluded, because the employment of a female guard would, due to the guard’ s sex, create a realthreat to the safety to others if violence broke out. See id. at 336. In Johnson Controls, the Court reiterated “that danger to awoman herself does not justify discrimination.” 499 U.S. at 202 (citing Dothard). The court there held that the threats of leadexposure to female employees’ own reproductive health did not justify the employer’ s decision to exclude women from certainpositions at a battery manufacturing plant. See id. at 206-07. Given Congress’ s decision in the Title VII context to allow allindividuals to decide for themselves whether to put their own health and safety at risk, it should come as no surprise that itwould enact legislation allowing the same freedom of choice to disabled individuals. Chevron makes two arguments as to why the direct threat provision should not be given its plain meaning. First, Chevronargues that we should defer to the EEOC’ s contrary interpretation of the ADA. The implementing regulations of Title I of theADA promulgated by the EEOC do, as Chevron contends, state that an employer may assert a “direct threat” defense withrespect to individuals who pose a threat only to their own health or safety.
[FOOTNOTE 7] See 29 C.F.R. � 1630.15(b)(2)(1999) (“The term ‘ qualification standard’ may include a requirement that an individual shall not pose a direct threat to thehealth or safety of the individual or others in the workplace.” (emphasis added)); 29 C.F.R. � 1630.2(r). Our determinationwhether a particular regulatory provision is valid begins with an inquiry into whether we must defer to the agency’ sconstruction, and if so, what level of deference the agency interpretation is owed. In the present case, we need not determinewhat level of deference Title I regulations are due, because we would reject the EEOC’ s regulatory interpretation of thestatutory “direct threat” provision even were we to conclude that Chevron deference is appropriate.
[FOOTNOTE 8] UnderChevron, “[i]f the intent of Congress is clear, that is the end of the matter; for the court, as well as the agency, must give effectto the unambiguously expressed intent of Congress.” Chevron, U.S.A., Inc. v. Natural Resources Defense Counsel, Inc., 467U.S. 837, 842-43 (1984); see also Zimmerman v. Oregon Dep’ t of Justice, 170 F.3d 1169, 1173 (9th Cir. 1999). As weconcluded above, the intent of Congress is clear: the language of the direct threat defense plainly expresses Congress’ s intent toinclude within the scope of a � 12113 defense only threats to other individuals in the workplace. Accordingly, we reject theEEOC’ s contrary interpretation. Second, Chevron suggests that we must ignore Congress’ s clear intent because forcing employers to hire individuals who posea risk to their own health or safety would expose employers to tort liability. Because Chevron has not argued that it faces anycosts from tort liability, this question is not properly before us. See Johnson Controls, 499 U.S. at 210. Nevertheless, weshould note that, in Johnson Controls, the Supreme Court strongly suggested that state tort law would be preempted to theextent that it interfered with federal antidiscrimination law. The Court stated that “we have not hesitated to abrogate state lawwhere satisfied that its enforcement would stand as an obstacle to the accomplishment and execution of the full purposes andobjectives of Congress.” Johnson Controls, 499 U.S. at 209-10 (internal quotation marks omitted). Therefore, given that theADA prohibits employers from refusing to hire individuals solely on the ground that their health or safety may be threatened bythe job, state tort law would likely be preempted if it interfered with this requirement. Moreover, we note that Chevron’ sconcern over an award of damages reflects a fear that hiring a disabled individual will cost more than hiring an individual withoutany disabilities. The extra cost of employing disabled individuals does not in itself provide an affirmative defense to adiscriminatory refusal to hire those individuals. See, e.g., 42 U.S.C. � 12112(b)(5)(A) (requiring employers to accommodatedisabled individuals, even when those accommodations impose additional costs, unless the employer can demonstrate that theaccommodations “would impose an undue hardship on the operation of the business” ). In short, the plain language of the direct threat provision is dispositive: Section 12113 does not afford a defense on the basisthat the performance of a job would pose a direct threat to an employee’ s (or prospective employee’ s) own health or safety.See 42 U.S.C. � 12113. III. Chevron next contends that, even if the direct threat provision does not provide it with a defense to its actions, it may defendits decision not to hire Echazabal on the ground that, because of the risk of damage to his liver, he is not “otherwise qualified” toperform the job at issue. Put simply, Chevron’ s argument is that the � 12113 “direct threat” defense does not set forth theexclusive way in which it may defend its decision not to hire Echazabal because of the risk to his health. We agree, of course, that the ADA does not require employers to hire individuals who are not “otherwise qualified.” Only aperson who is a “qualified individual with a disability” is protected from discrimination under the ADA. See 42 U.S.C. �12112(a) (“No covered entity shall discriminate against a qualified individual with a disability because of the disability of suchindividual . . . .” ). According to the Act, the term “qualified individual with a disability” means: [A]n individual with a disability who, with or without reasonable accommodation, can perform the essential functions of the employment position that such individual holdsor desires. For the purposes of this subchapter, consideration shall be given to the employer’ s judgment as to what functions ofa job are essential, and if an employer has prepared a written description before advertising or interviewing applicants for thejob, this description shall be considered evidence of the essential functions of the job. 42 U.S.C. � 12111(8) (emphasis added). We do not agree, however, with Chevron’ s assertion on appeal that performing the work at the coker unit without posing athreat to one’ s own health or safety is an “essential function” of the coker unit job. Chevron argues that it is an essential functionbecause “the record establishes that Chevron did prepare a written description of the job before advertising it and itincorporated the need for an employee to be able to tolerate an environment including, among other things, hydrocarbon liquidsand vapors, petroleum, solvents and oils.” According to Chevron, the “requirement” of the job description that an employee notbe susceptible to harm from the chemicals is an “essential function” of the job simply because Chevron has chosen to describe itas such. While we give consideration to an employer’ s judgment as to what functions of a job are essential, see 42 U.S.C. �12111(8), an employer may not turn every condition of employment which it elects to adopt into a job function, let alone anessential job function, merely by including it in a job description. Job functions are those acts or actions that constitute a part ofthe performance of the job. “The job” at the coker unit is to extract usable petroleum products from the crude oil that remainsafter other refining processes. The job functions of the “plant helper” position for which Echazabal applied consist of variousactions that help keep the coker unit running. Chevron does nothing more than add a prohibited condition to these actual jobfunctions when it asserts that the job functions at the coker unit consist of performing the actions that help keep the unit runningwithout posing a risk to oneself. Were we to ignore the limits of the actual functions of the job at issue and permit Chevron toadd to those functions any condition it chooses to impose in its written job description, the term “essential function” would berendered meaningless.
[FOOTNOTE 9] Moreover, Chevron’ s reading of “essential functions” would, by definitionalslight-of-hand, circumvent Congress’ s decision to exclude a paternalistic risk-to-self defense in circumstances in which anemployee’ s disability does not prevent him from performing the requisite work. Accordingly, we reject Chevron’ sinterpretation of what may constitute an “essential function” of a job.
[FOOTNOTE 10] Given that not posing a risk to one’ s own health or safety cannot in itself constitute an essential job function, it is clear thatChevron’ s reason for refusing to hire Echazabal is not related to Echazabal’ s ability to perform the essential functions of the jobfor which he applied.
[FOOTNOTE 11] Chevron has never contended that the risk Echazabal allegedly poses to his own healthrenders him unable to perform those duties. Nor would we accept such an argument in this case were Chevron to make it.Echazabal worked for Irwin at the coker unit, performing work similar to the job for which he applied, long after he wasdiagnosed with hepatitis. There is no evidence that the health of his liver ever affected his ability to do the job. Had Echazabalfailed during that period to perform the essential functions of his work, we seriously doubt that Chevron would have twiceextended him contingent offers to work at the coker unit. Accordingly, we hold that the risk that Echazabal’ s employment might pose to his own health does not affect the questionwhether he is a “qualified individual with a disability.” IV. For the foregoing reasons, we conclude that the ADA’ s direct threat defense means what it says: it permits employers toimpose a requirement that their employees not pose a significant risk to the health or safety of other individuals in theworkplace. It does not permit employers to shut disabled individuals out of jobs on the ground that, by working in the jobs atissue, they may put their own health or safety at risk. Conscious of the history of paternalistic rules that have often excludeddisabled individuals from the workplace, Congress concluded that disabled persons should be afforded the opportunity todecide for themselves what risks to undertake. The district court’ s grant of summary judgment to Chevron on Echazabal’ sADA claim is reversed.
[FOOTNOTE 12] REVERSED in part, VACATED in part, and REMANDED for further proceedings consistent with this opinion. :::FOOTNOTES:::
FN1 The district court also certified for appeal three other claims by Echazabal on which it granted summary judgment forChevron: a Rehabilitation Act claim, a claim under California’ s Fair Employment and Housing Act, and a claim that Chevronintentionally interfered with Echazabal’ s employment contract with the contractor for whom he worked. As we discuss below,see infra note 13, in this opinion we vacate the district court’ s grant of summary judgment as to the first two of these claims. Ina separate memorandum disposition filed concurrently herewith, we also reverse the district court’ s grant of summary judgmentwith respect to the intentional interference with contract claim.
FN2 The defenses section of Title I of the ADA reads in relevant part: (a) In general It may be a defense to a charge of discrimination under this chapter that an alleged application of qualification standards, tests,or selection criteria that screen out or tend to screen out or otherwise deny a job or benefit to an individual with a disability hasbeen shown to be job-related and consistent with business necessity, and such performance cannot be accomplished byreasonable accommodation, as required under this subchapter. (b) Qualification standards The term “qualification standards” may include a requirement that an individual shall not pose a direct threat to the health orsafety of other individuals in the workplace. . . . . 42 U.S.C. � 12113. The subsection that sets forth the “direct threat” language does not explicitly set forth an affirmativedefense to a claim of disability discrimination. Nevertheless, it is clear that Congress intended the provision to define the termsof such defense.
FN3 We asked the parties and the amicus EEOC to be prepared to discuss, at oral argument, whether the direct threatdefense includes threats to oneself. Following argument, we invited the parties and the EEOC to submit briefs on the question.While the parties submitted such briefs, the EEOC advised us that it did not wish to do so.
FN4 A district court in the Seventh Circuit has examined the question in detail. It concluded, as do we, that the direct threatdefense does not apply to threats to oneself. See Kohnke v. Delta Airlines, Inc., 932 F. Supp. 1110 (N.D. Ill. 1996).
FN5 It is true that, in the Eleventh Amendment context, the Supreme Court has rejected a similar textual argument. Althoughthe Eleventh Amendment specifies only that “citizens of another state” may not sue a state, the Court has held that states areimmune from suit by citizens of the same state. See Seminole Tribe of Florida v. Florida, 517 U.S. 44, 54 (1996); Hans v.Louisiana, 134 U.S. 1 (1890). But see Pennsylvania v. Union Gas Co., 491 U.S. 1 (1989); U.S. Const. amend. XI.Regardless of the merits of the Court’ s interpretation of the Eleventh Amendment, we decline to follow a similar approach hereor to adopt so atextual a reading of the direct threat defense. Rather, we prefer to afford the statute its plain meaning.
FN6 We found but one discussion in the legislative history that could be read as contrary to the plain reading of the directthreat defense. The report of the House Committee on Education and Labor contains the following somewhat ambiguouspassage: A candidate, undergoing a post-offer, pre-employment medical examination may not be excluded, for example, solely on thebasis of an abnormality on an x-ray. However, if the examining physician found that there was high probability of substantialharm if the candidate performed the particular functions of the job in question, the employer could reject the candidate . . . H.R. Rep. No. 101-485, pt. 2, at 73-74, reprinted in 1990 U.S.C.C.A.N. 303, 355-56. The quoted language does notmake it clear to whom such “substantial harm” might occur. In any event, this general discussion does not take place in thecontext of discussing the direct threat defense. When the House Committee report does discuss the direct threat defensespecifically, it, like the other reports, states that the defense codifies the standard set forth by the Supreme Court in Arline. Inthe end, the evidence provided by this isolated passage is vastly outweighed by the substantial evidence to the contrary thatappears throughout the legislative history.
FN7 While we invited the EEOC, as amicus, to file a brief commenting on the validity of its regulatory interpretation, itdeclined to do so. See supra note 3.
FN8 While we need not decide what level of deference the regulations implementing Title I are due, we note that Congressexplicitly required the EEOC to issue regulations implementing Title I. See 42 U.S.C. � 12116 (“Not later than 1 year after July26, 1990, the Commission shall issue regulations in an accessible format to carry out this subchapter [Title I] . . . .” ). Chevronsets forth the level of deference that “should be accorded to an executive department’ s construction of a statutory scheme it isentrusted to administer.” Chevron, 467 U.S. at 844. In fact, with respect to Title II of the ADA, we have held that Chevrongoverns review of regulations promulgated by the Attorney General because “Congress required the Attorney General topromulgate regulations implementing Title II.” Zimmerman v. Oregon Dep’ t of Justice, 170 F.3d 1169, 1172-73 (9th Cir.1999); see also Dare v. California, 191 F.3d 1167, 1172 (9th Cir. 1999); Does 1-5 v. Chandler, 83 F.3d 1150, 1153 (9thCir. 1996). The regulations implementing Title I of the ADA present a different deference question than that confronted by theSupreme Court in its recent ADA decisions. In Sutton and Kirkingburg, the Supreme Court reserved the question whether,and to what extent, the regulations and interpretive guidance “promulgated by the EEOC relating to the ADA’ s definitionalsection, 42 U.S.C. � 12102,” are entitled to deference. Albertsons, Inc. v. Kirkingburg, 119 S. Ct. 2162, 2167 n.10 (1999);see also Sutton v. United Airlines, Inc., 119 S. Ct. 2139, 2151 (1999); Broussard v. University of Cal., at Berkley, 192F.3d 1252, 1256 n.2 (9th Cir. 1999) (reserving same question). As the Supreme Court specifically noted, however, “[n]oagency . . . has been given authority to issue regulations implementing the generally applicable provisions of the ADA, see � �12101-12102, which fall outside Titles I-V.” Sutton, 119 S. Ct. at 2145. Unlike the generally applicable provisions consideredin Kirkingburg and Sutton, Title I contains an explicit grant of regulatory authority to the EEOC.
FN9 Chevron’ s argument is markedly similar to the argument made by the dissent in Johnson Controls regarding the word”occupation” in the term “bona fide occupational qualification,” as used in Title VII of the Civil Rights Act. See JohnsonControls, 499 U.S. at 211 n.1 (White, J., concurring); id. at 201. In Johnson Controls, the majority rejected the dissent’ sinterpretation, see id. at 201, 203-04, and described the fallacy of the argument as follows: “It is word play to say that ‘ the job’at Johnson [Controls] is to make batteries without risk to fetuses in the same way ‘ the job’ at Western airlines is to fly planeswithout crashing.” Johnson Controls, 499 U.S. at 207 (quoting Johnson Controls, 886 F.2d 871, 913 (7th Cir. 1989)(Easterbrook, J., dissenting)).
FN10 Chevron argues that, in spite of the fact that it would undermine the clear language of the ADA’ s direct threat provision,we should conclude that a personal safety requirement is a valid qualification standard because such a conclusion is supportedby case law implementing the Rehabilitation Act. It is true that at least one Ninth Circuit Rehabilitation Act case appears toconclude that a disabled individual is not a “qualified handicapped person” if her employment would pose “a reasonableprobability of substantial harm” to her. Mantolete v. Bolger, 767 F.2d 1416, 1422-24 (9th Cir. 1985) (stating that a risk toself may prevent an individual from being “qualified,” but holding that the district court applied a standard too lenient when itfound that, because the individual’ s employment would pose “an elevated risk of injury,” she was not a qualified handicappedperson). But cf. Bentivegna v. United States Dep’ t of Labor, 694 F.2d 619, 622-23 & n.3 (9th Cir. 1982) (questioning,under the Rehabilitation Act, whether a risk of future injury to self would be “related to the performance of the job and . . .consistent with business necessity,” but declining to “hold that a non-imminent risk of injury cannot justify rejecting ahandicapped individual” ). Mantolete does not affect our analysis, however, because it relies on a Rehabilitation Act regulationthat is irrelevant to our inquiry. The Mantolete court relied on a Rehabilitation Act regulation that defined a “qualifiedhandicapped person” as an individual who, among other things, is able to “perform the essential functions of the position inquestion without endangering the health and safety of the individual or others.” 29 C.F.R. � 1613.702(f) (emphasis added);see also Mantolete, 767 F.2d at 1421. The Rehabilitation Act did not provide a statutory definition of the term “qualifiedhandicapped person.” Thus, the court deemed the regulations controlling. In contrast to the Rehabilitation Act, the ADAcontains a statutory definition of the term “qualified individual with a disability,” which is the ADA’ s equivalent of theRehabilitation Act’ s “qualified handicapped person.” See 42 U.S.C. � 12111(8). The statutory definition in the ADA does notmention threats to the health or safety of the individual or others. Rather, it requires only that the individual be able, with orwithout reasonable accommodation, to “perform the essential functions of the employment position that such individual holds ordesires.” 42 U.S.C. � 12111(8). Obviously, the ADA’ s statutory definition of the term “qualified individual with a disability”supercedes the Rehabilitation Act’ s regulatory definition of the analogous term.
FN11 In the context of threats to others, as opposed to threats to self, a few circuits have addressed employer claims that athreat that an individual posed to others prevented that person from performing the essential functions of the job at issue. SeeEEOC v. Amego, Inc., 110 F.3d 135, 142-44 (1st Cir. 1997); EEOC v. Exxon Corp., 203 F.3d 871, 873-75 (5th Cir.2000). Because these decisions deal with threats to others, they are irrelevant to our analysis.
FN12 As noted above, the district court also certified for appeal its grant of summary judgment in favor of Chevron on theRehabilitation Act and FEHA claims. In granting Chevron summary judgment with respect to those claims, however, the districtcourt treated the substantive standards for liability under all three statutes as identical. We note that this conclusion may well becorrect with respect to the Rehabilitation Act. In 1992, Congress amended the relevant provision of the Rehabilitation Act –section 504 — by adding the following subsection: The standards used to determine whether this section has been violated in a complaint alleging employment discrimination underthis section shall be the standards applied under title I of the Americans with Disabilities Act of 1990 (42 U.S.C. 12111 etseq.) and the provisions of sections 501 through 504, and 510, of the Americans with Disabilities Act of 1990 (42 U.S.C.12201- 12204 and 12210), as such sections relate to employment. Rehabilitation Act Amendments of 1992, Pub. L. No. 102-569, � 506, 106 Stat. 4344, 4428 (amendments codified at 29U.S.C. � 794(d)). Thus, our reversal as to the ADA claim may well require reversal with respect to the Rehabilitation Actclaim. Nevertheless, we leave it to the district court to determine initially whether summary judgment should be granted toChevron as to the Rehabilitation Act and FEHA claims. Accordingly, we vacate the district court’ s grant of summary judgmentwith respect to those claims, and remand for reconsideration in light of our decision. In addition, because we reverse the districtcourt’ s grant of summary judgment as to the ADA claim and vacate its grant of summary judgment as to the Rehabilitation Actand FEHA claims, we also reverse the district court’ s judgment that Echazabal’ s claim for punitive damages is moot.
FN13 The Honorable Myron H. Bright, Senior United States Circuit Judge for the Eighth Circuit Court of Appeals, sitting by designation.
Echazabal v. Chevron USA, Inc. Mario Echazabal, Plaintiff-Appellant, v. Chevron USA, Inc.; Irwin Industries, Inc., Defendant-Appellee. No. 98-55551 United States Court of Appeals for the Ninth Circuit D.C. No. CV-97-03498-LGB Appeal from the United States District Court for the Central District of California. Lourdes G. Baird, District Judge, Presiding Argued and Submitted November 3, 1999 — Pasadena, California. Submission Vacated November 15, 1999 Resubmitted January 25, 2000 Filed: May 23, 2000 Before: Myron H. Bright,
[FOOTNOTE 13] Stephen Reinhardt, and Stephen S. Trott, Circuit Judges. Counsel: Larry Minsky, Sievers & Minsky, Long Beach, California, for the plaintiff-appellant. Jon P. Kardassakis, Hawkins, Schnabel, Lindahl & Beck, Los Angeles, California, for the defendant-appellee. Geoffrey L. Carter, Washington, D.C., for amicus Equal Employment Opportunity Commission.
