SUPREME COURT CLARIFIES SCOPE OF "DIRECT THREAT" DEFENSE TO ADA CLAIMS

by Charles D. Lawson

On June 10, 2002, the United States Supreme Court issued a unanimous opinion upholding an Equal Employment Opportunity Commission ("EEOC") regulation permitting employers to defend against a claim asserted under the Americans with Disabilities Act ("ADA") on the basis that the individual's disability would pose a "direct threat" to his or her own health in the workplace.  Chevron U.S.A., Inc. v. Echazabal, 536 U.S. (June 10, 2002).  This opinion resolved a split among the Courts of Appeal and is good news for employers because it laid to rest any doubt that the ADA permits an employer not only to require that a disabled individual not pose a threat to others in the workplace, but also to insist that the employment of the individual not create an unreasonable risk of harm to the employee himself.
 
In Echazabal, the plaintiff had worked for independent contractors at an oil refinery owned by Chevron U.S.A., Inc., ("Chevron").  He applied twice to work directly for Chevron and each time, Chevron offered to hire him if he successfully completed a medical examination.  On each occasion, the medical exam revealed liver damage caused by Hepatitis C, which the company's physicians claimed would be aggravated by continued exposure to toxins at the facility.  Both times, Chevron withdrew the offer of employment and ultimately instructed Echazabal's employer to reassign him to a position at the refinery where he would not be exposed to harmful chemicals or to remove him from the facility altogether. 

When Echazabal was laid off, he filed suit under the ADA.  In its defense, Chevron relied upon an EEOC regulation, 29 CFR § 1630.15(b)(2) (2001), which provides that an employer will not be liable for refusing employment to a person whose disability would pose a direct threat either to himself or others in the workplace.  Echazabal claimed the regulation exceeded the EEOC's rulemaking authority and argued that the ADA itself recognized the defense only when an individual's disability posed a direct threat to other individuals in the workplace.  The Ninth Circuit Court of Appeals agreed and reversed the trial court's granting of summary judgment in favor of Chevron.

The United States Supreme Court reversed the Ninth Circuit’s decision, focusing on the fact that the defense provided by the ADA is broadly worded to include any action taken by an employer under a qualifications standard “shown to be job-related for the position in question and . . . consistent with business necessity.”  The Court concluded that the provision of the ADA relied upon by Echazabal, that such a standard may include a requirement that an individual not pose a direct threat to the safety of others in the workplace, was simply an example and did not preclude the EEOC from requiring in its regulations that an employee’s disability not pose a direct threat to the employee himself.  Thus, the Court stated that the EEOC's regulation may actually have been anticipated by Congress as the agency had also expanded the similar "direct threat" provision in the Rehabilitation Act of 1973, 29 U.S.C. § 701, et seq. to cover not only direct threats "to the health or safety of other individuals," but also "threat-to-self employment."  See 29 CFR § 1613.702(f) (1990).  Finally, the Court noted that enforcing the EEOC regulation before it would be consistent with the national Occupational Safety and Health Act of 1970, 29 U.S.C. § 651 et seq. ("OSHA") which requires employers to provide employees with a place of employment "free from recognized hazards that are causing or are likely to cause death or serious physical harm." 

The Echazabal decision is a favorable one for employers.  However, employers should be mindful that the direct threat defense must always be based upon reasonable medical judgment which itself relies upon medical knowledge and the best available objective evidence.  See 29 C.F.R. § 1630.2(r) (2001).  In all circumstances, the assessment of the applicability of the defense must be based upon an "individualized assessment of the individual's present ability to safely perform the essential functions of the job," including a consideration of the imminence of the risk and severity of the potential harm.  Id.  Accordingly, an employer's concern that an employee may pose a risk of injury or harm to himself has to be based upon a "clear and present danger," not speculation or the mere possibility that the employee may injure himself.

If you have any questions regarding the Echazabal case or would like a copy of the opinion, please contact any member of our Labor and Employment group.

© 2002 Chambliss, Bahner & Stophel, P.C.

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