Policy Brief Series - No. 9, Chevron v. Echazabal: The Americans with Disabilities Act's "Direct Threat to Self" Defense

Skip to Page Content

Contents

  1. Introduction
  2. Case Synopsis
  3. Legal Disposition of Chevron v. Echazabal
    1. Case Facts
    2. Legal Background
    3. U.S. Supreme Court Decision
      1. Deference to EEOC Direct threat to self Defense Regulations
      2. Direct threat to self Defense as Job-Related and Consistent with Business Necessity
    4. Remand to the U.S. Court of Appeals for the Ninth Circuit
  4. Implications
    1. Importance of Personal Choice in Employment
    2. Ramifications of the Medical Model in Employment
    3. Maintaining the Structural Integrity of Title I
    4. Redefining the Direct-Threat Defense
    5. Post-Script: Personal and Legal Posture
      1. Effects of the Chevron Decision on Mario Echazabal
      2. Effects of the Chevron Decision on Others
      3. Remand to the U.S. Court of Appeals for the Ninth Circuit
      4. Echazabal v. Chevron: Disability Discrimination under the California Fair Employment and Housing Act
  5. Conclusion
  6. Endnotes

I. Introduction

Encountering risk is an element of everyday life experience. Assessing and accepting risks within reason are basic elements of personal independence and the exercise of adult responsibility. Congress understood this and acknowledged in the Americans with Disabilities Act (ADA) that discrimination takes many forms, including paternalism and stereotyping.

Perhaps the most long-standing and insidious aspect of this type of discrimination is the assumption that people with disabilities are not competent to make informed, wise, or safe life choices. This myth is most apparent and damaging in the employment context. Thus, the exclusion of qualified people with disabilities from jobs, on the basis of an employer-determined risk of danger to themselves, is an impermissible act of paternalism.

Regulations to ADA Title I issued by the Equal Employment Opportunity Commission (EEOC), however, permit an employer to refuse to hire a person with a disability if the individual would "pose a direct threat to the health or safety of the individual." In 2002, the Supreme Court decided Chevron v. Echazabal, a case in which Chevron refused to hire an individual with asymptomatic Hepatitis C on the grounds that the workplace might exacerbate his condition. The Court ruled in favor of Chevron, endorsing the EEOC's definition of "direct threat," which includes a threat to one's own health or safety.

The ramifications of the Chevron decision are beginning to surface in lower federal court cases. The initial determinations confirm the concerns of people with disabilities that employers increasingly will use the "direct-threat" defense to deny employment to qualified people with disabilities.

Mario Echazabal personified the situation the ADA was intended to prevent - paternalism that results in exclusion and isolation. If Chevron could deny employment to Mario Echazabal, who had worked in Chevron's oil refineries for twenty years with no degradation to his health, the employment outlook may be worse for people with symptomatic disabilities who have not had an opportunity to demonstrate they can perform jobs safely.

This paper is divided into several parts. Part II provides a case synopsis. Part III sets out the legal disposition of theChevron case: the facts, U.S. Supreme Court ruling, and issues on remand to the Ninth Circuit. Part IV examines the implications of the Supreme Court's Chevron decision for ADA law and disability policy and makes recommendations to align the definition of "direct threat" with Congressional intent. The paper concludes with a post-script describing the practical effects of the Chevron decision on Mario Echazabal and its ramifications for other individuals with disabilities.

II. Case Synopsis

During its 2000-2001 term, the U.S. Supreme Court decided Chevron U.S.A. Inc. v. Mario Echazabal. In Chevron, the Court deferred to EEOC ADA Title I regulations that permit an employer to deny a job to a qualified person with a disability if the job would be potentially harmful to that individual (that is, a "direct threat" to that individual). The Chevron decision thereby permits employers to exclude people with disabilities covered by the ADA from working at a job, even though they pose no safety threat to others and are qualified for the particular job.

In Chevron, however, the Supreme Court reaffirmed that the direct-threat determination must be founded on an individualized assessment of a current and significant risk of substantial harm based on objective medical evidence, and that the risk cannot be eliminated with reasonable accommodation. On this basis, the Supreme Court reversed the judgment of the U.S. Court of Appeals for the Ninth Circuit, remanding the case for further proceedings consistent with the Supreme Court's opinion.

Mario Echazabal successfully performed the essential functions of various jobs in Chevron's refinery coker unit for some twenty years without accident or injury to himself or anybody else. Echazabal was capable of making independent and informed decisions about his employment and medical treatment. Chevron was apprised and aware of Echazabal's health status during these years, through repeated medical evaluations submitted to Chevron's clinic physicians while Echazabal remained working at the refinery.

For thousands of Americans with disabilities like Mario Echazabal, who want to work and who are capable of working, theChevron decision has created a wave of new uncertainties. After Chevron, a trial court in an ADA Title I case may find in favor of a defendant employer on summary judgment (i.e., without a trial) based only on the potential existence of a direct threat to self.

For instance, if an employer (or its workers' compensation insurance carrier) presents information showing that people who use wheelchairs, are blind, deaf, and so on, are twice as likely to be injured in their workplace (which, in fact, research suggests is not true), may that employer refuse to hire that person with a disability, even though the individual is qualified for the job? The Chevron decision would permit a trial court to reach that conclusion, and not address whether the plaintiff could perform the essential functions of the particular job with reasonable accommodation.

Post-Chevron, employers unilaterally may bar or dismiss from jobs qualified workers who do not pose a health or safety risk to others, but only to themselves. The result is to endorse the unjustified paternalism and stereotyping that Congress expressly sought to eliminate through the ADA.

III. Legal Disposition of Chevron v. Echazabal

On June 10, 2002, the U.S. Supreme Court decided the case Chevron USA Inc. v. Echazabal.1 In Chevron, the Court ruled that Chevron could deny employment to a qualified individual with a disability, Mario Echazabal, whom the company believed might be harmed by exposure to their particular workplace environment. Chevron accomplished this goal by relying on a "direct threat to self" defense to discrimination charges, language set out in regulatory guidance by the Equal Employment Opportunity Commission ("EEOC").2

Echazabal argued that the threat-to-self defense was not present in the language of the ADA, was contrary to a plain and natural reading of the Act, and that it was inconsistent with the expressed intent of Congress. The threat-to-self defense, it was contended, allows employers to decide the degree of risk a qualified individual with a disability can and should accept in performing his or her job. The defense would allow employers unilaterally to bar or dismiss from jobs qualified workers who do not pose a health or safety risk to others, but perhaps only to themselves. In Echazabal's case, this determination was based on speculative and, at best, probabilistic medical criteria. The result, therefore, endorsed the unjustified paternalism and stereotyping that Congress expressly sought to eliminate when it enacted the ADA.

A. Case Facts

Mario Echazabal worked at Chevron's El Segundo, California oil refinery for some twenty years. During this time, he worked as a laborer, helper, and pipefitter for various maintenance contractors, primarily in the coker unit. In 1992, Echazabal applied to work directly for Chevron at the refinery's coker unit as a pipefitter/mechanic. He again applied in 1995 for the position of plant helper. On both occasions, Chevron determined that Echazabal was qualified for the job and could perform its essential functions based on his past work history, and extended Echazabal job offers contingent on his passing a physical examination.3

After examination and review, Chevron's physicians concluded that Echazabal should not be exposed to the solvents and liver-toxic chemicals in the refinery and Chevron withdrew its offer to hire him. They reached this conclusion even though Echazabal's physicians had not issued any restrictions precluding him from working in the refinery.4

Chevron's decision was based on a medical assessment-which Echazabal contested was not grounded in current medical knowledge or the best available objective evidence-of the ability of Echazabal's liver to cleanse itself of the chemicals to which he had been, and would continue to be, exposed in the refinery. In late 1993, Echazabal was diagnosed as having chronic active Hepatitis C, which has remained asymptomatic since first diagnosed.

In February 1996, Chevron wrote to Irwin Industries, Echazabal's then employer at the refinery. Chevron requested that Irwin remove Echazabal from the refinery or place him in a position that eliminated his exposure to liver-toxic solvents and chemicals. This action was taken even though Echazabal's liver condition never caused injury or accident to himself or anyone else at the refinery.

B. Legal Background

After losing his position at the refinery, Echazabal filed a complaint with the EEOC. He subsequently filed a complaint in state court (which was removed to federal court) alleging, among other claims, discrimination on the basis of a disability in violation of the ADA, the Rehabilitation Act, and California's anti-discrimination statutes.

The federal district court granted summary judgment in favor of Chevron. The Ninth Circuit reversed, holding that the direct-threat defense contained in the ADA did not permit employers to exclude from employment qualified individuals with disabilities who pose a risk only to themselves and not others; and that the risk that Echazabal posed to his own health did not affect whether he was a qualified individual for purposes of the Act.5 The Supreme Court accepted the case for review.

C. U.S. Supreme Court Decision

1. Deference to EEOC Direct threat to self Defense Regulations

    In its decision, the Supreme Court acknowledged that ADA Title I creates an affirmative defense for employers based on a qualification standard that is job-related and consistent with business necessity. The standard may include "a requirement that an individual shall not pose a direct threat to the health or safety of other individuals in the workplace" if the individual cannot perform the job safely with reasonable accommodation.6

    The EEOC's regulation, however, allowed an employer to screen out an individual with a disability not only for potential risks that he would pose to others in the workplace, but also for risks on the job to his own health or safety.7 Chevron argued that Echazabal's refinery job would pose such a "direct threat" to his health.

    The Supreme Court concluded that Congress included the harm-to-others provision as merely one example of a legitimate qualification standard that may be job-related and consistent with business necessity. These "defensive categories," it reasoned, were intended to allow the EEOC reasonable discretion in establishing permissible qualification standards.8

    However, the Court's conclusion did not mean that the defense provisions place no limit on EEOC rulemaking, as some regulations are precluded by the Act's specification that the direct-threat defense not include "indirect" threats of "insignificant" harm."9 Thus, the Supreme Court did not decide whether all safety-related qualification standards need to satisfy the ADA's direct-threat standard.10 Rather, the Court concluded that Echazabal failed to show that Congress intended to omit the direct threat to self-defense from the affirmative defense category.11

    2. Direct Threat to Self Defense as Job-Related and Consistent with Business Necessity

      Under Title I, the direct-threat defense envisions qualification standards that are "job-related and consistent with business necessity."12 Chevron contended that the job-related and business necessity reasons for upholding the EEOC's regulation were that it must "avoid time lost to sickness, excessive turnover from medical retirement or death, litigation under state tort law, and the risk of violating the national Occupational Safety and Health Act of 1970 ("OSHA")."13

      In its decision, the Supreme Court focused primarily on the concern with OSHA14 in upholding the EEOC regulation.15 The Court noted that the intent of OSHA is to assure "safe and healthful working conditions," and for an employer to furnish a "place of employment which is free from recognized hazards that are causing or are likely to cause death or serious physical harm to his employees."16 Although the Court acknowledged that it is not clear whether an employer would be liable under OSHA for hiring an individual with a disability who consented to the particular dangers of a job, it reasoned that:

      there is no denying that the employer would be asking for trouble: his decision to hire would put Congress's policy in the ADA, a disabled individual's right to operate on equal terms within the workplace, at loggerheads with the competing policy of OSHA, to ensure the safety of "each" and "every" worker.17

      In the Court's view then, the EEOC's direct threat to self-guidance was a reasonable balance between OSHA's objectives of workplace safety and the ADA's rejection of employer paternalism.18 As the Court held:

      [T]he EEOC has taken this to mean that Congress was not aiming at an employer's refusal to place disabled workers at a specifically demonstrated risk, but was trying to get at refusals to give an even break to classes of disabled people, while claiming to act for their own good in reliance on untested and pretextual stereotypes.19

      The Court concluded that the EEOC's regulation "disallows just this sort of sham protection, through demands for a particularized enquiry into the harms the employee would probably face."20 In remanding the case to the Ninth Circuit, the Court reaffirmed its previous holding in Bragdon v. Abbott 21 that the direct-threat defense must be based on a reasonable medical judgment using current knowledge or objective evidence, predicated on an "individualized assessment" of the individual's present ability to safely perform essential job functions, while considering the likelihood of the risk and severity of the harm.22

      In sum, the Court found that the EEOC acted within reason "when it saw a difference between rejecting workplace paternalism and ignoring specific and documented risks to the employee himself, even if the employee would take his chances for the sake of getting a job."23 The Court did not decide the parameters of an impairment that would allow an employer to disqualify a job applicant or employee with a disability, as a trial court must make this determination on a case-by-case basis.

      D. Remand to the U.S. Court of Appeals for the Ninth Circuit

      The question on remand to the Ninth Circuit was whether Chevron's decision to exclude Echazabal, because he allegedly posed a direct threat to himself, was based on an individualized inquiry as required by Title I and the EEOC regulations interpreting the Act.24 On remand, Echazabal, and the EEOC as amicus curiae, contended that the Ninth Circuit should reverse the district court's grant of summary judgment to Chevron because no such individualized assessment was made. Echazabal and the EEOC amicus argued it was reversible error for the district court to have held that Chevron's direct-threat determination process (i.e., its reliance on the medical opinions of physicians non-expert in the areas of hepatitis/liver disease and toxicology) was sufficient under Title I.25

      Before excluding Echazabal as a direct threat, Chevron was required under EEOC regulations to show that it had made an individualized assessment of his then current ability to perform essential job functions. This evaluation was required to have been derived from current medical knowledge and objective evidence.26

      The EEOC regulations, which were upheld in Chevron, set