Business Be Advised!
Court ADA ruling suggests more special accommodations likely.
Employers must stay alert and involved in public discussion.
Mario Echazabal worked at Chevron’s El Segundo, California, refinery for an independent maintenance contractor providing service to Chevron from 1972 to 1992. He worked primarily in the coker unit. In 1992 Echazabal applied to work directly for Chevron at the same facility. Chevron determined that he was qualified for the position and, contingent upon passing the required physical, offered employment. The offer was subsequently rescinded upon a medical finding that Echazabal was suffering from an abnormal liver condition which, Chevron concluded, would put him at risk of further health damage due to the presence of solvents and chemicals inherent to that position at the refinery.
However, Echazabal continued to work for the independent contractor throughout the facility, including the coker unit. Upon learning of the enzyme test results, he consulted with several doctors and was eventually diagnosed with asymptomatic, chronic active hepatitis C. None of the physicians advised him to stop working at the refinery. In 1995 Echazabal again applied to work directly for Chevron. He was again given a tentative offer of employment, but medical tests determined that his hepatitis was still active. Once again Chevron’s offer of employment was withdrawn on the basis of actual danger to the health of Echazabal.
This time, Chevron wrote to the contractor asking that Echazabal be removed from the refinery or placed in a position that eliminated his exposure to solvents and chemicals. Echazabal lost his position at the refinery and subsequently filed a complaint with the Equal Employment Opportunity Commission (EEOC) alleging discrimination on the basis of a disability in violation of the Americans with Disabilities Act (ADA). The federal district court granted Chevron’s motion for summary judgment. The case, Echazabal v. Chevron,1 was appealed to the 9th Circuit which held that Echazabal’s rights had, indeed, been violated.
Impact on Business
The 9th Circuit Court of Appeals, as a matter of first impression, concluded that employers are prohibited from rejecting applicants on the basis of existing special risk health factors, even when unique workplace hazards exist. The holding profoundly alters what had been previously understood to be a legitimate grounds for denial of employment based upon health concerns. What is not addressed by the Echazabal holding is the court’s next predictable step — the issue of “special accommodation” under the ADA. The aggressiveness of the 9th Circuit in this general area of the law is obvious, and it is no great leap to predict its future direction. While there is still the possibility that the 9th Circuit will be overturned, that is by no means certain. The business community needs to be very alert and proactive in this area, lest the requirement of special accommodation become crushingly expansive and impair its ability to carry on with business.
Analysis of the Court’s Reasoning
To better understand how this decision came about and what it could mean, it is instructive to review the basic arguments in this case.
Chevron argued that its decision to deny employment to an otherwise qualified applicant, on the basis that the job posed an actual threat to the applicant’s health, was a caring and socially-responsible employer decision. The court dismissed this line of reasoning as paternalistic and in violation of the ADA as well as of Title VII of the Civil Rights Act of 1964. Indeed, the court reasoned that the ADA was designed, in part, to prohibit discrimination against those with disabilities through the use of “overprotective rules and policies.” The Findings Section of the Act speaks to such “overprotective rules and policies” as a form of discrimination against those with disabilities.2 Further, the court noted that Title VII aggressively labels the determination by an employer that a work environment is too dangerous for females as unlawful gender discrimination. Such protectiveness is deemed counter to Title VII, which was “created so that a woman could specifically make that choice for herself.”3 Although the plaintiff in this case is male, the Court determined that the theme of “choice” has direct application.
The bias on the part of the “system” in favor of employees in disputes with employers, whether real or imagined, is a reasonable issue when employers consider hiring at-risk applicants. In this case, Chevron put forward as one of its defenses the need to avoid putting itself in tort liability as the result of knowingly placing a health-impaired employee directly in harm’s way. Given the understanding that employer protection under Workers’ Compensation could be voided by such an intentional act left only the weak defense of assumption of risk. It appeared, therefore, that the prudent course of action for Chevron was to deny employment to Echazabal. The court on this issue, in a near summary manner, dismissed this defense and stated that employers could not reject persons who pose a risk to their own health or safety on the basis of possible employer liability that might result under state tort law. The rationale for this position was that federal law would preempt state law if the former interfered with the intent of the latter. UAW v. Johnson Controls4 was cited as controlling.
Although advancing the above-mentioned claims, Chevron determined that its strongest defense was under the Defenses Section of the ADA itself. This section provides that an employer may impose a qualified standard in hiring, and an employee “may not impose a direct threat to the health or safety of others in the workplace.”5 The question in this instance, and indeed the pivotal issue for the court’s holding overall, is whether the threat to an employee’s own health qualifies under the “direct threat” defense. From the beginning, Chevron acknowledged that the defense is narrowed by the ADA prohibiting employers from “using qualification standards . . . that screen out or tend to screen out an individual with a disability or a class of individuals with disabilities.”6 Nevertheless, Chevron believed that the facts of this case clearly met the defense standard. Until this case, the 9th Circuit had “not yet ruled on whether the direct threat defense included threats to oneself.”7
Chevron’s approach was supported by other Federal Circuits which had, in fact, held that the “direct threat” defense included threats to oneself.8 Surprisingly, the 9th Circuit in this case off-handedly dismissed the 1st, and 5th Circuit decisions as aimless discourse. In referring to the decision of the 11th Circuit, where the court was very specific in its position that the “direct threat” defense applies to the disabled applicant,9 the 9th Circuit stated that case provided “no guidance” due to the absence of “proper analysis.”
Chevron further argued that its decision not to hire Echazabal was in conformity with the interpretation of the ADA by the Equal Employment Opportunity Commision (EEOC). The implementing regulations of Title I of the ADA established by the EEOC state that the “direct threat” defense applies to individuals who pose a threat to their own health or safety.10 The section states, “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 [emphasis added] or others in the workplace.”11 Despite the tradition of deference to agency interpretation, the 9th Circuit rejected the EEOC’s analysis of relevant ADA provisions as contrary to the court’s view of Congress’s intent and therefore invalid.12
Thus, neither the holdings of three Circuit Courts nor published EEOC regulations proved persuasive. The 9th Circuit concluded that Chevron’s refusal to hire on the basis of special danger to the applicant failed to qualify under “direct threat.”
Chevron prudently did not rely solely on the “direct threat” defense under the ADA, but also looked to Echazabal’s failure to meet the requirements of the posted job description. Indeed, Chevron had gone the extra mile by publishing a written description that specifically identified the qualification standard of being able to tolerate a hazardous chemical environment without posing a special risk to oneself. Based upon the position that “not posing a threat to one’s own health or safety is an ‘essential function’ of the coker unit job,” Chevron concluded that Echazabal did not meet the “otherwise qualified” job requirement, a recognized defense under the ADA.13
The 9th Circuit, however, was not to be dissuaded from what appears to have been its pre-ordained objective. It stated that “an employer may not turn a 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.”14 The court in the Echazabal case clearly understood what it wanted to understand and rejected Chevron’s “essential function” job description as paternalistic sleight-of-hand.15 Accordingly, the court held that risk to the applicant’s own health does not affect whether he or she is a “qualified individual with a disability.”16
Implications for Business Action
It is clear that the 9th Circuit Court of Appeals pushed through to a conclusion that it wanted to reach even though that decision cast aside EEOC regulations and discounted the contrary holdings of other Circuits. It has established an employment requirement that prohibits employers from rejecting applicants on the basis of existing special risk factors, even when unique workplace hazards exist. This makes very predictable the next step – the requirement of expanded special accommodations under ADA for persons hired under these circumstances. The aggressiveness of the 9th Circuit in this general area of the law is now documented.
Based upon the foregoing, it would seem to follow that if those persons who have existing disabilities that might increase the likelihood of further injury on the job cannot be denied positions, then expansion of special accommodation must be anticipated. It is well settled that the added cost of employing disabled individuals does not in itself provide a defense to the discriminatory refusal to hire.17 The only possible limitation is where the accommodation “would impose an undue hardship on the operation of the business.”18 In light of the Echazabal progression, one can predict that the next related holding by the 9th Circuit may expand the employer’s burden of special accommodation, entwined with related complex issues inherent in OSHA and EEOC, to levels presently undetermined.
Although the 9th Circuit has been overturned by the US Supreme Court more often than any other Circuit, such may not be counted on in matters of the ADA. Notwithstanding the conservative majority on the Supreme Court, the ADA is enthusiastically embraced, albeit by different routes of analysis, by both liberal and conservative members.
The Echazabal case is an example of how the court, as much as the legislative and administrative branches, can move in the direction of a particular bias even to the extent of sweeping aside those precedents and defenses that would be expected to constrain such action. Business must anticipate, and help direct, the course of political and legal movement if it is to successfully function within the legal, political and regulatory environment. The winds of human emotion and bias permeate not only politics but also the leap-frog direction of case law and regulation. Echazabal is a reminder that legal research directed to existing statutes, regulations and case law is but one dimension of consideration.
The opportunity of business to participate in the marketplace of political ideas and to anticipate the shifts that may prevail, is another. Being disengaged provides momentary comfort but allows for unopposed momentum that is destructive to business viability and thus society at large.
1 213 F.3d 1098 (9th Cir. 2000).
2 42 U.S.C. § 12101(A)(5)(1994).
3 Dothard v. Rawlinson, 433 U.S. 321 at 355 (1977).
4 UAW v. Johnson Controls, Inc., 499 U.S. 187 at 209-210 (1991).
5 42 U.S.C. § 12113 (1994).
6 742 U.S.C. § 12112(b), 42 U.S.C. § 12113(a) (1994).
7 Nuns v. Wal-Mart Stores, Inc., 164 F.3d 1243 at 1247 (9th Cir. 1999).
8 La Chance 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); Moses v. America Nonwovens, Inc., 97 F.3d 446 (11th Cir. 1996).
9 Moses v. America Non-wovens, Inc., 97 F.3d 446 at 447 (1996).
10 29 C.F.R. § 1630.15(b)(2) (1999).
11 29 C.F.R. § I1630.2(r) (1999).
12 213 F.3D 1098 at 1101 (9th Cir. 2000).
13 id. at 1102.
14 id. at 1101.
15 id. at 1102.
17 42 U.S.C. § 12112(b)(5)(A).