No.

00-

In the Supreme Court of the United States

__________

CHEVRON U.S.A., INC., PETITIONER,

v.

MARIO ECHAZABAL, RESPONDENT.

__________

Petition for a Writ of Certiorari

to the United States Court of Appeals
for the Ninth Circuit
__________

PETITION FOR A WRIT OF CERTIORARI

__________

ROBERT P. DAVIS STEPHEN M. SHAPIRO

EVAN M. TAGER Counsel of Record
Mayer, Brown & Platt JAMES D. HOLZHAUER
1909 K Street, N.W. Mayer, Brown & Platt
Washington, D.C. 20006 190 South LaSalle Street
(202) 263-3000 Chicago, Illinois 60603
(312) 782-0600
JON P. KARDASSAKIS
Hawkins, Schnabel, Lindahl
& Beck LLP
600 South Figueroa Street
Suite 1500
Los Angeles, California 90017
(213) 488-3900
Counsel for Petitioner
 i

QUESTION PRESENTED
Respondent, who has chronic hepatitis C, a debilitating liver
condition, applied for a job at Chevron’s refinery that would
have exposed him to a range of liver-toxic chemicals. After
Chevron’s doctors and respondent’s own physician agreed that
daily exposure to these chemicals would accelerate the
deterioration of respondent’s liver and that a large-scale
exposure from a burst pipe, fire, or other emergency could
quickly kill him, Chevron declined to hire him. In conflict with
decisions of other courts of appeals as well as with EEOC
regulations and guidelines squarely on point, the Ninth Circuit,
in an opinion by Judge Reinhardt, held that under the
Americans with Disabilities Act, an employer may not refuse
to hire an employee whose medical condition would make the
particular position he seeks dangerous to his health or life.
Judge Trott dissented.
The question presented is:
Whether a person who is unable to carry out the essential
functions of a job without incurring significant risks to the
person’s own health or life is a “qualified individual” who
satisfies “qualification standards” for that job within the
meaning of the Americans with Disabilities Act.
 ii

RULES 14.1 AND 29.6 STATEMENT

The parent of petitioner Chevron U.S.A., Inc., is Chevron
Corporation. No other publicly held company owns 10 percent
or more of petitioner’s stock.
Irwin Industries, Inc., was a defendant in the district court
but was not a party to the proceeding in the court of appeals and
is not a petitioner here.
 iii

TABLE OF CONTENTS
Page

QUESTION PRESENTED . . . . . . . . . . . . . . . . . . . . . . . . . . i

RULES 14.1 AND 29.6 STATEMENT . . . . . . . . . . . . . . . . ii

PETITION FOR A WRIT OF CERTIORARI . . . . . . . . . . . 1

OPINIONS BELOW . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

JURISDICTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

STATUTES AND REGULATIONS INVOLVED . . . . . . . 1

STATEMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

A. The Statutory And Regulatory Scheme . . . . . . . . . . 4

B. Chevron’s Determination That Respondent Was Not

Qualified For The Plant Helper Job . . . . . . . . . . . . . 5

C. Respondent’s Suit And The District Court’s Grant

Of Summary Judgment To Chevron . . . . . . . . . . . . 8

D. The Ninth Circuit’s Divided Decision . . . . . . . . . . . 9

REASONS FOR GRANTING THE PETITION . . . . . . . . 11

I. THE NINTH CIRCUIT’S DECISION CREATES

MULTIPLE CONFLICTS WITH OTHER
COURTS OF APPEALS AND CONTRADICTS
EEOC RULES . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
 iv

TABLE OF CONTENTS — Continued

Page

II. THE NINTH CIRCUIT’S DECISION DIS-

REGARDS THE ADA’S PLAIN LANGUAGE
AND NULLIFIES CONGRESSIONAL INTENT . 21

CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30
 v

TABLE OF AUTHORITIES
Cases: Page

Albertson’s, Inc. v. Kirkingburg, 527 U.S. 555 (1999) . . passim

Board of Trustees v. Garrett, No. 99-1240 (Feb. 21, 2001) . . . 27

Borgialli v. Thunder Basin Coal Co., 235 F.3d 1284

(10th Cir. 2000) . . . . . . . . . . . . . . . . . . . . . . . . . 2, 16

Bragdon v. Abbott, 524 U.S. 624 (1998) . . . . . . . . . . . 19, 20

Chandler v. City of Dallas, 2 F.3d 1385 (5th Cir. 1993) . . 20

Chevron, U.S.A., Inc. v. NRDC, 467 U.S. 837 (1984) . . 11, 23, 29

Chiari v. City of League City, 920 F.2d 311 (5th Cir.

1991) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20

Christensen v. Harris County, 529 U.S. 576 (2000) . . . . . 23

Chrysler Corp. v. Brown, 441 U.S. 281 (1979) . . . . . . . . . 26

Daugherty v. City of El Paso, 56 F.3d 695 (5th Cir. 1995) . . . 2

Doe v. New York Univ., 666 F.2d 761 (2d Cir. 1981) . . 2, 19

Dothard v. Rawlinson, 433 U.S. 321 (1977) . . . . . . . . 27, 28

EEOC v. Amego, Inc., 110 F.3d 135 (1st Cir. 1997) . 2, 14, 17, 18

EEOC v. Blue Cross Blue Shield, 30 F. Supp. 2d 296

(D. Conn. 1998) . . . . . . . . . . . . . . . . . . . . . . . . . . . 16

EEOC v. Exxon Corp., 203 F.3d 871 (5th Cir. 2000) . 2, 17, 18
 vi

TABLE OF AUTHORITIES — Continued

Page

International Union v. Johnson Controls, Inc., 499 U.S.

187 (1991) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27, 28

Knapp v. Northwestern Univ., 101 F.3d 473 (7th Cir.

1996) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3, 20

Koshinski v. Decatur Foundry, Inc., 177 F.3d 599 (7th

Cir. 1999) . . . . . . . . . . . . . . . . . . . . . . . . . . . . passim

LaChance v. Duffy’s Draft House, Inc., 146 F.3d 832

(11th Cir. 1998) . . . . . . . . . . . . . . . . . . . . . . . . . . . 16

Landgraf v. USI Film Prods., 511 U.S. 244 (1994) . . . . . . 26

Moragne v. States Marine Lines, 398 U.S. 375 (1970) . . . 24

Moses v. American Nonwovens, Inc., 97 F.3d 446 (11th

Cir. 1996) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2, 16

Smith v. United States, 508 U.S. 223 (1993) . . . . . . . . . . . 23

Sutton v. United Air Lines, Inc., 527 U.S. 471 (1999) . . . . 14

Texas Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248

(1981) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30

United States v. Barnes, 222 U.S. 513 (1912) . . . . . . . . . . 22

United States v. X-Citement Video, Inc., 513 U.S. 64

(1994) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
 vii

TABLE OF AUTHORITIES — Continued

Page

Statutes:

The Americans with Disabilities Act:

42 U.S.C. § 12111(3) . . . . . . . . . . . . . . . . . . . . . . . . 4, 22

42 U.S.C. § 12111(8) . . . . . . . . . . . . . . . . . . . . . 4, 22, 23

42 U.S.C. § 12112(a) . . . . . . . . . . . . . . . . . . . . . . . passim

42 U.S.C. § 12113(a) . . . . . . . . . . . . . . . . . . . . . . . passim

42 U.S.C. § 12113(b) . . . . . . . . . . . . . . . . . . . . . . . passim

42 U.S.C. § 12201(a) . . . . . . . . . . . . . . . . . . . . . . . . . . 19

The Occupational Safety and Health Act:

29 U.S.C. § 654 . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3, 25

The Rehabilitation Act:

29 U.S.C. § 705(20)(D) . . . . . . . . . . . . . . . . . . . . . . . . 20

29 U.S.C. § 794 . . . . . . . . . . . . . . . . . . . . . . . . . . . passim

California Fair Employment and Housing Act,

California Government Code § 12940 . . . . . . . . . . . 8

California Labor Code § 6402 . . . . . . . . . . . . . . . . . . . . . . 25

 viii

TABLE OF AUTHORITIES — Continued

Page

Regulations:

The Americans with Disabilities Act Regulations:

29 C.F.R. § 1630.2(q) . . . . . . . . . . . . . . . . . . . . . . passim

29 C.F.R. § 1630.2(r) . . . . . . . . . . . . . . . . . . . . . . . passim

29 C.F.R. § 1630.15(b)(2) . . . . . . . . . . . . . . . . . . . . 3, 28

29 C.F.R. § 1630.15(e) . . . . . . . . . . . . . . . . . . . . . . . . 25

56 Fed. Reg. 35726 (July 26, 1991) . . . . . . . . . . . . 14, 15

The Rehabilitation Act Regulations:

29 C.F.R. § 1614.203(a)(6) . . . . . . . . . . . . . . . . . . . . . 19

43 Fed. Reg. 12293 (Mar. 24, 1978) . . . . . . . . . . . 19, 24

Miscellaneous:

136 Cong. Rec. 17377 (1990) . . . . . . . . . . . . . . . . . . . . . . 26

EEOC, A Technical Assistance Manual on the

Employment Provisions (Title I) of the
Americans with Disabilities Act (Jan. 1992) . . . . . 15

Fed. R. Civ. P. 54(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

 ix

TABLE OF AUTHORITIES — Continued

Page

1 House Comm. on Education and Labor, 101st Cong.,

2d Sess., Legislative History of Pub. L. 101-
336, Americans with Disabilities Act (Comm.
Print 1991) . . . . . . . . . . . . . . . . . . . . . . . . . 19, 24, 27

Hudson, Paternalism is Out, ABA Journal, Feb. 2001 . . . . 3

1 OSHA Comp. Guide (CCH) ¶ 1161 (2000) . . . . . . . . . . 25

OSHA, Standards Interpretation, Employment of

Individuals with Disabilities (Aug. 27, 1997)
(www.osha-slc.gov/OshDoc/Interp_data/
I19970827.html) . . . . . . . . . . . . . . . . . . . . . . . . . . . 25

2B N. Singer, Statutes and Statutory Construction (6th

ed. 2000) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24

Webster’s Third New Int’l Dictionary (1971) . . . . . . . . . . 23

 PETITION FOR A WRIT OF CERTIORARI
Petitioner Chevron U.S.A., Inc., respectfully petitions for a
writ of certiorari to review the judgment of the United States
Court of Appeals for the Ninth Circuit in this case.
OPINIONS BELOW
The amended opinion of the court of appeals (App., infra,
1a-24a) is reported at 226 F.3d 1063 (superseding the opinion
reported at 213 F.3d 1098). The court of appeals’ opinion
addressing respondent’s state law intentional interference with
contract claim (App, infra, 25a-29a) is unreported. The opinion
of the district court (App., infra, 32a-57a) is unreported.
JURISDICTION
The judgment of the court of appeals was entered on May 23,
2000. Petitioner filed a timely petition for rehearing and
rehearing en banc on June 9, 2000. The court of appeals issued
an amended opinion on September 26, 2000. It denied
Chevron’s rehearing petition on December 12, 2000. App.,
infra, 30a. This Court’s jurisdiction is invoked under 28 U.S.C.
§ 1254(1).
STATUTES AND REGULATIONS INVOLVED
The relevant provisions of the Americans with Disabilities
Act, 42 U.S.C. § 12111, et seq., and the Rehabilitation Act, 29
U.S.C. § 701, et seq., together with relevant portions of the
regulations implementing those statutes, are reproduced at
App., infra, 58a-61a.
STATEMENT
Chevron withdrew an offer to employ respondent in a
refinery job in which he inevitably would have been exposed to
liver-toxic substances after Chevron’s physicians determined
that respondent had a “history of a long term liver problem, [a]
diagnosis of chronic active Hepatitis C, and significantly
elevated liver enzymes.” C.A. App. 81. Chevron’s physicians
concluded that the “exposure to hepatotoxic chemicals”
 2

involved in the job “would further damage [respondent’s]

already reduced liver capacity,” “seriously endanger his health,”
and “potentially cause [his] death.” Id. at 81-82. Respondent’s
own doctor advised Chevron that respondent should not be
exposed to hepatotoxins. App., infra, 37a, 47a.
The Ninth Circuit majority (Reinhardt and Bright, JJ.)
nevertheless held that respondent was “qualified” for the
refinery job within the meaning of the Americans with
Disabilities Act (“ADA”) because he posed no “direct threat”
to other people. Chevron could not refuse to hire respondent on
the ground that doing the job “most probably will endanger his
life.” App., infra, 21a.
That “bizarre” result, as Judge Trott described it (App., infra,
21a), creates numerous conflicts with other courts of appeals.
The Ninth Circuit’s ruling conflicts with the holding of the
Seventh Circuit that an employee is not a “qualified individual”
under the ADA if there is “no way to do the job * * * without
subjecting himself to the very things his doctors recommended
he stay away from.” Koshinski v. Decatur Foundry, Inc., 177
F.3d 599, 601, 603 (7th Cir. 1999). It conflicts with decisions
that recognize a “direct threat” defense to ADA liability where
an employee’s “assigned tasks presented grave risks to [the]
employee” as a result of a medical condition. Moses v.
American Nonwovens, Inc., 97 F.3d 446, 447 (11th Cir. 1996);
see also Borgialli v. Thunder Basin Coal Co., 235 F.3d 1284,
1288-1294 (10th Cir. 2000). It conflicts with decisions that
safety requirements may be included in the “qualification
standards” for a position. EEOC v. Exxon Corp., 203 F.3d 871,
873-874 (5th Cir. 2000); EEOC v. Amego, Inc., 110 F.3d 135,
143 (1st Cir. 1997). And it is at odds with cases interpreting
virtually identical language in the Rehabilitation Act, which
hold that persons who “pose a significant risk of harm to
themselves” are not “qualified.” Doe v. New York Univ., 666
F.2d 761, 777 (2d Cir. 1981); see also Daugherty v. City of El
 3

Paso, 56 F.3d 695, 697-698 (5th Cir. 1995); Knapp v.

Northwestern Univ., 101 F.3d 473, 482-484 (7th Cir. 1996).
Beyond creating sharp conflicts among the circuits, the court
of appeals’ decision expressly overrides regulations of the
Equal Employment Opportunity Commission, the expert agency
Congress charged with implementing the ADA’s employment
provisions. App., infra, 11a-12a. Those regulations provide that
an employer may establish as a “qualification standard”
“medical” and “safety” requirements that an applicant must
meet, and that such standards may exclude an applicant who
would pose a “significant risk of substantial harm to the health
or safety of the individual or others.” 29 C.F.R. §§ 1630.2(q),
(r), 1630.15(b)(2). The court of appeals’ ruling also is
inconsistent with the command of the Occupational Safety and
Health Act (as well as state worker protection laws) that
employers provide a safe workplace for all employees. 29
U.S.C. § 654.
The “absurd” result in this case—one that will cost workers’
lives and force unwilling employers to be complicit in their
injuries—is not what Congress had in mind when it enacted the
ADA, as the plain language and legislative history demonstrate.
App., infra, 23a. Absent this Court’s intervention, businesses
will face intolerable uncertainty in determining how to comply
with the requirements of the ADA in the face of conflicting
judicial and regulatory commands, while also complying with
OSHA and state worker protection laws. These factors have led
commentators to describe the Ninth Circuit’s ruling as “one of
the most important decisions under the ADA during the 10
years since it has been in effect,” and to observe that it “cries
out for Supreme Court review.” Hudson, Paternalism is Out,
ABA Journal, Feb. 2001, at 30.
The full articulation of competing views in the opinions
below makes this the ideal case in which to resolve the
important question presented. This case also presents the Court
 4

with an opportunity to address the issue left unresolved in

Albertson’s, Inc. v. Kirkingburg, 527 U.S. 555, 569 & n.15
(1999)—whether all safety-related qualification standards
“must satisfy the ADA’s ‘direct threat’ criterion” to be valid.
A. The Statutory And Regulatory Scheme
The Americans with Disabilities Act of 1990 prohibits an
employer from discriminating in employment decisions
“against a qualified individual with a disability because of the
disability of such individual.” 42 U.S.C. § 12112(a). A
“qualified individual with a disability” is someone with a
disability “who, with or without reasonable accommodation,
can perform the essential functions of the employment position
that such individual holds or desires.” Id. § 12111(8). The ADA
provides that “consideration shall be given to the employer’s
judgment as to what functions of a job are essential,” and that
an employer’s “written description” of the job is evidence of its
essential functions. Ibid.
It is “a defense to a charge of discrimination” under the ADA
that an individual was denied employment as the result of the
employer’s “application of qualification standards” that are
“job-related and consistent with business necessity.” 42 U.S.C.
§ 12113(a). The statute provides one example of a qualification
standard: “The term ‘qualification standards’ may include a
requirement that an individual shall not pose a direct threat to
the health or safety of other individuals in the workplace.” Id.
§ 12113(b). “Direct threat” is defined as “a significant risk to
the health or safety of others that cannot be eliminated by
reasonable accommodation.” Id. § 12111(3).
The responsibility of an employer who denies employment
to an applicant because the job would endanger his health or life
may be analyzed in terms of whether the applicant is a
“qualified individual” pursuant to ADA sections 12111(8) and
12112(a), or in terms of whether the absence of such danger is
a proper “qualification standard” and therefore a defense to
 5

ADA liability under section 12113(a). The EEOC’s regulation

expressly recognizes a defense where there is “a significant risk
of substantial harm to the health or safety of the individual or
others,” and describes the basis on which it may be determined
that such a threat exists. 29 C.F.R. § 1630.2(r) (emphasis
added).
B. Chevron’s Determination That Respondent Was Not
Qualified For The Plant Helper Job
Respondent Mario Echazabal worked at Chevron’s oil
refinery in El Segundo, California from 1972 until 1996,
employed by independent maintenance contractors, most
recently by Irwin Industries, Inc. (“Irwin”). In 1992, Echazabal
applied to work directly for Chevron in the refinery’s coker
unit. Chevron offered him the job, contingent on a satisfactory
medical examination. Chevron’s regional physician, Dr. Baily,
conducted that examination and concluded from the results of
tests showing elevated levels of liver enzymes in Echazabal’s
blood that he had “an uncorrectable liver abnormality, and
should avoid exposure to solvents and other liver toxic
chemicals in order not to exacerbate his liver problems.” Dr.
Baily’s successor, Dr. McGill, agreed with this conclusion. On
that basis, Chevron rescinded its offer of employment to
Echazabal, who continued to work at the refinery for Irwin.
Thereafter, Echazabal’s own doctors diagnosed him with
chronic active hepatitis C and treated him with the drug
Interferon. App., infra, 34a, 36a; C.A. App. 86.
In late 1995 Echazabal again applied to Chevron for a
position as plant helper in the refinery’s coker unit. Chevron’s
official “job summary” (C.A. App. 156-159) included a
description of the “physical/environmental demands” of the
plant helper job and of worker abilities necessary to withstand
those demands. Id. at 159. That description identified as
“airborne contaminants and chemicals in work environment”
“hydrocarbon liquids and vapors, acid, caustic, refinery waste
 6

water and sludge, petroleum solvents, oils, greases, [and]

chlorine bleach.” Ibid.; App., infra, 36a-37a.
Chevron offered Echazabal the plant helper job contingent
upon his passing a medical examination. In conducting that
examination, Chevron’s Dr. McGill—who has practiced
industrial medicine since 1980—reviewed results of eight blood
tests taken between 1992 and 1996. All of those tests showed
that Echazabal had significantly elevated levels of liver
enzymes, which had not improved despite treatment with
Interferon. App., infra, 35a-36a. Dr. McGill also reviewed the
written job summary of the plant helper position identifying
environmental conditions to which a plant helper is exposed,
including “several that are hepatotoxic.” C.A. App. 80-81;
App., infra, 36a-37a. He concluded that Echazabal “faced a
significant risk of substantial harm” in the plant helper position
and “could not safely perform that job.” C.A. App. 85.
Given Echazabal’s “long term liver problem, his diagnosis
of chronic active Hepatitis C, and significantly elevated liver
enzymes over a period of years” evidencing “a reduced liver
function” and “progressive liver disease,” Dr. McGill concluded
that “further exposure to hepatotoxic chemicals and solvents
would * * * seriously endanger [Echazabal’s] health” and
“could be fatal.” “Small exposures over a long period of time”
would compromise his health. “[A] single event large exposure
(for example, as a result of a ruptured pipe, a relief valve
popping and venting, a fire, explosion or other emergency
situation)” could “potentially cause death.” C.A. App. 81-82.
Dr. McGill was also informed by Echazabal’s own physician,
orally and in writing, that Echazabal should not be exposed to
hepatotoxic substances. App., infra, 37a; C.A. App. 195.
Chevron’s medical director, Dr. Bridge, agreed with Dr.
McGill’s assessment that Echazabal could not safely work in
the plant helper position. Dr. McGill then informed Chevron’s
personnel director that if Echazabal were hired, it should be
 7

subject to a work limitation: “No exposure to solvents or other

liver toxic chemicals.” The personnel director determined that
such exposure is “a necessary and inseparable part of the plant
helper position,” and accordingly withdrew Echazabal’s
conditional job offer. App., infra, 38a-39a.
Shortly thereafter, Chevron sent a letter to Irwin explaining
Echazabal’s medical condition and asking Irwin to “remove Mr.
Echazabal from our Refinery or place him in a position that
eliminates his exposure to solvents/chemicals.” App., infra,
39a. Irwin removed Echazabal from Chevron’s refinery and had
him examined by a physician. Dr. Tang, who is board certified
in occupational medicine and teaches that subject, reviewed
Echazabal’s test results for Irwin and “concluded that exposure
to liver toxins would harm and probably kill” him. Id. at 40a.
After such exposures, “some people have died of massive
hepatic failure in a few hours, and [it] can also occur over
months and years.” C.A. Supp. App. 23. Dr. Tang stated that
Echazabal “has a condition that will be worsened by [exposure
to hepatotoxins], causing probable death. * * * If he’s exposed
to hepatotoxins, he should not be there.” Id. at 27. Echazabal
was laid off by Irwin, though there are factual disputes
concerning the course of events involving Irwin and Echazabal.
App., infra, 41a-42a.1

1
Echazabal produced testimony from two doctors retained for
purposes of this litigation who dispute whether his elevated enzyme
levels reflect liver damage or reduced liver function and also dispute
the determination of Chevron’s doctors that exposure to substances
at the refinery would endanger Echazabal’s life and health. See App.,
infra, 36a, 48a. The district court correctly held that the legally
relevant inquiry for the purpose of Echazabal’s claims is whether
Chevron reached a “reasonable medical judgment” based on “the best
available objective evidence” at the time the employment decision
was made. Id. at 48a-49a. See 29 C.F.R. § 1630.2(r) (establishing that
test); Koshinski v. Decatur Foundry, Inc., 177 F.3d 599, 602 (7th Cir.
1999) (determination “must be made ‘as of the time of the
 8

C. Respondent’s Suit And The District Court’s Grant

Of Summary Judgment To Chevron
Echazabal filed suit against Chevron in April 1997 alleging
that Chevron’s withdrawal of his employment offer violated the
Americans with Disabilities Act, the Rehabilitation Act, and
California’s Fair Employment and Housing Act, Cal. Gov’t
Code § 12940 (“FEHA”), and that Chevron intentionally
interfered with Echazabal’s contractual relations with Irwin.
Echazabal sought punitive as well as actual damages for each
claim.2 The district court (Baird, J.) granted summary judgment
to Chevron on each of those counts.
The district court carefully reviewed the relevant statutes,
regulations, and case law, concluding that under the ADA,
Rehabilitation Act, and FEHA, “an employer may lawfully
refuse to hire a disabled individual who is not otherwise
qualified because the proposed employment poses a direct
threat to the health of the employee himself.” App., infra, 46a.
The court engaged in a detailed review of the medical evidence
and evidence concerning environmental conditions in
Chevron’s refinery. The court found it “undisputed” that
Chevron’s determination that Echazabal posed a direct threat to

employment decision’”). The court held that the evaluations of

Echazabal’s expert witnesses, “even if correct, were not available to
Chevron” when it withdrew its offer, and that “the evidence which
was available to [Chevron] supported [its] decisions.” App., infra, at
49a. The difference of opinion between Echazabal’s and Chevron’s
physicians, on the one hand, and Echazabal’s expert witnesses on the
other, was not mentioned in the Ninth Circuit majority’s opinion. It
has no bearing on the legal issues decided by the court of appeals and
presented in this petition.
2
Respondent also alleged that Irwin violated the ADA,
Rehabilitation Act, and FEHA. The district court denied Irwin’s
summary judgment motion and the claims against Irwin are not at
issue here.
 9

his own health and safety was based on an individualized

assessment by Dr. McGill supported by consultation with other
Chevron doctors and Echazabal’s own physician. Id. at 47a. The
court also found that “[a]ll the medical opinions which
specifically contemplated Echazabal’s employment in the
position of plant helper, and which were relied upon and
available to Chevron at the time of its decision * * *, regarded
any exposure to hepatotoxic chemicals, including those to
which Echazabal would be exposed, as posing a serious,
immediate risk to him.” Ibid.
Because Chevron had made a reasonable medical judgment
based on available evidence that the plant helper job would
endanger Echazabal’s health and life, the court granted Chevron
summary judgment on Echazabal’s ADA, Rehabilitation Act,
and FEHA claims. App., infra, 52a. The court also granted
Chevron summary judgment on Echazabal’s intentional
interference with contractual relations claim, because he had
presented no evidence that Chevron intended that his relation
with Irwin be terminated. Id. at 53a. The district court certified
its grant of summary judgment to Chevron for immediate
appeal under Fed. R. Civ. P. 54(b). C.A. App. 646-652.
D. The Ninth Circuit’s Divided Decision
In his appeal, Echazabal argued that whether Chevron had
adequately established that Echazabal would pose a direct threat
to his own safety could not properly be resolved on summary
judgment. Echazabal did not initially challenge the district
court’s ruling that the “direct threat” defense applies when the
threat is to an applicant’s or employee’s own health. Instead,
the issue was raised by the panel, sua sponte, in a request for
supplemental briefing. App., infra, 5a n.3.3

3
The EEOC declined the court of appeals’ invitation to file a brief
on the question whether the “direct threat” defense applies to threats
to self. App., infra, 11a n.7. The Chamber of Commerce of the United
 10

The Ninth Circuit reversed the district court’s grant of

summary judgment on the ADA claim. The majority concluded
that the ADA’s “direct threat” defense does not apply to
applicants or employees who pose a direct threat to their own
health or safety but not to the health or safety of others in the
workplace. App., infra, 13a. The majority also rejected
Chevron’s argument that Echazabal was not “qualified” to
perform “essential functions” of the plant helper job because of
the risks the job posed to him, holding as a matter of law that
“not posing a risk to one’s own health or safety cannot in itself
constitute an essential job function.” Id. at 17a. The majority
reasoned that in specifying a “direct threat to others” defense in
section 12113(b), Congress intended “to exclude a paternalistic
risk-to-self defense in circumstances in which an employee’s
disability does not prevent him from performing the requisite
work,” and also intended to preclude “a personal safety
requirement [as] a valid qualification standard.” Id. at 16a &
n.10. The majority acknowledged that these rulings are in
conflict with the decisions of other courts of appeals. Id. at 6a,
17a n.11. Furthermore, in reaching its decision the majority
expressly “reject[ed] the EEOC’s contrary interpretation” of the
ADA, even though it recognized that “Congress explicitly
required the EEOC to issue regulations implementing Title I”
of the ADA (which includes the employment provisions at issue
here). Id. at 11a-12a & n.8.
Judge Trott dissented. He stated that the majority’s
“Pickwickian ruling” is “bizarre” and “leads to absurd results:
a steelworker who develops vertigo can keep his job
constructing high rise buildings; a power saw operator with

States and Equal Employment Advisory Council filed a supplemental

amicus brief in support of Chevron explaining that the “direct threat”
defense is not the only way of showing that an individual is not
“qualified” for the job, and that an individual who cannot perform the
job without incurring serious injury is not a “qualified individual.”
 11

narcolepsy or epilepsy must be allowed to operate his saw; and

a person allergic to bees is entitled to be hired as a beekeeper.”
App., infra, 21a, 23a. He observed that the majority’s decision
also has the “pernicious” effect of “dislodg[ing] longstanding
laws mandating workplace safety. * * * So much for OSHA”
and state safe-workplace laws. Ibid.
Judge Trott would have affirmed the grant of summary
judgment to Chevron on two grounds. First, a person is not
“qualified” to “perform the essential functions of the position
he seeks when precisely because of his disability, those
functions may kill him.” Second, Chevron satisfied the ADA’s
“direct threat” defense, as interpreted by the EEOC to apply to
workers who pose a threat to their own safety—an
interpretation to which Judge Trott would have deferred under
Chevron, U.S.A., Inc. v. NRDC, 467 U.S. 837 (1984). App.,
infra, 21a-23a.
Judge Trott protested that the majority’s decision will
“require employers knowingly to endanger workers,” will
generate obvious “legal peril” for employers, and will impose
an “unconscionable” “moral burden” on them. App., infra, 23a.
He predicted that “conflicting responsibilities under different
labor laws” would now engender “long, expensive, and
unpredictable litigation.” Ibid. Judge Trott expressed hope that
the clear conflict among the circuits “will compel Supreme
Court review.” Id. at 23a-24a.
REASONS FOR GRANTING THE PETITION
This Court should review the Ninth Circuit’s decision
because the circuits are split over the recurring issue whether a
person who will suffer serious injury or death as a result of
carrying out the essential functions of a job is “qualified” for
that job within the meaning of the Americans with Disabilities
Act, and because the Ninth Circuit rejected the interpretation set
forth in regulations of the agency Congress charged with
implementing the law. In addition, the Ninth Circuit’s ruling
 12

creates inconsistent obligations for employers under the ADA

and federal and state worker-protection laws such as the
Occupational Safety and Health Act. By forcing employers to
be complicit in injury to their employees—a result that
Congress plainly did not intend—the Ninth Circuit’s decision
opens businesses up to liability not only under these worker
protection statutes, but also in state tort suits, and it creates
debilitating practical problems in the workplace.
The Ninth Circuit’s decision, which is incorrect under well
established principles of statutory interpretation, throws
businesses’ efforts to comply with the ADA into confusion.
This Court should grant certiorari to restore sensible and certain
rules to this important area of disability and employment law,
and to avoid the absurd result that an employer within the Ninth
Circuit cannot now deny a job handling dangerous machinery
to an epileptic who suffers uncontrollable seizures, remove an
employee with uncontrollable vertigo from a job scaling high
structures, or keep any employee from work that will certainly
kill him because of his medical condition.
I. THE NINTH CIRCUIT’S DECISION CREATES
MULTIPLE CONFLICTS WITH OTHER COURTS OF
APPEALS AND CONTRADICTS EEOC RULES
Courts of appeals have recognized no fewer than three
statutory bases under the ADA for a business to refuse to
employ a person who would incur substantial harm to life or
health in performing the essential functions of a job. First, a
person who cannot perform essential job functions without
endangering his health or life is not a “qualified individual”
under section 12112(a), and so is not within the ADA’s
protections at all. Second, an employer’s insistence that a
person not pose a “direct threat” to his own safety is a
permissible “qualification standard” for a job under
section 12113(b), as interpreted by the EEOC in regulations and
guidance. 29 C.F.R. § 1630.2(r). Third, an employer is more
 13

generally entitled under section 12113(a) to establish and

enforce “qualification standards” for a position that are “job-
related and consistent with business necessity,” including
specifically “medical” and “safety” standards. 29 C.F.R.
§ 1630.2(q). The Ninth Circuit rejected each of these grounds
for denying employment to someone whose condition makes
the job he seeks dangerous to his health or life. Its decision also
conflicts with directly relevant authority interpreting virtually
identical provisions of the Rehabilitation Act, which increases
the unsettling impact of this “bizarre” ruling. App., infra, 21a.
1. Qualified individual. The Ninth Circuit held that Echaza-
bal was “qualified” for the plant helper position despite the fact
that Echazabal’s and Chevron’s doctors agreed that the
substances he would be exposed to on the job would harm or
kill him. App., infra, 14a-18a. That holding is squarely in
conflict with the Seventh Circuit’s decision in Koshinski v.
Decatur Foundry, Inc., 177 F.3d 599 (7th Cir. 1999).
In Koshinski, the plaintiff was fired from his job operating a
blast furnace after he was diagnosed with degenerative osteo-
arthritis and his own and his employer’s doctors concluded that
he should not be exposed to the vibrations and high force,
repetitive tasks involved in the job because that would
“exacerbate his condition.” 177 F.3d at 601. Relying on the
medical opinions available to the employer at the time it made
its decision, the Seventh Circuit rejected “Koshinski’s self-
destructive wish to return to this particular job” because “there
was no way to do the job * * * without subjecting himself to the
very things his doctors recommended he stay away from.” Id.
at 602-603. Koshinski therefore “could not perform the
essential functions” of the position and was not “qualified to do
the job.” Id. at 603.
The Seventh Circuit found it unnecessary to address whether
Koshinski’s employer had a “direct threat” defense in these
circumstances, because “[t]he ‘direct threat’ issue arises * * *
 14

only after an ADA plaintiff has made out a prima facie case, as
an employer’s defense to the challenged adverse employment
decision.” Koshinski had not shown “that he was entitled to
protection under the ADA” as a “qualified individual” in the
first place. 177 F.3d at 603. See also EEOC v. Amego, Inc., 110
F.3d 135, 142-144 (1st Cir. 1997) (holding that risks to the
safety of others could be considered “as part of the
‘qualifications’ analysis”).
Clearly, the reasoning and result in Koshinski are at odds
with the Ninth Circuit’s decision here. The Seventh Circuit
would have held that Echazabal—who produced no
contemporaneous medical evidence that he could do the plant
helper job without harm to himself—had failed to make out a
prima facie case that he was “qualified,” and hence was outside
the scope of the ADA’s protection.
2. Direct threat. As the Ninth Circuit acknowledged (App.,
infra, 5a, 11a-12a), its holding that an employer may not require
as a “qualification standard” that a person not pose a “direct
threat” to his own health or safety conflicts with EEOC
regulations and with decisions of other circuits applying the
EEOC’s regulations.
The EEOC “has authority to issue regulations to carry out
the employment provisions in Title I of the ADA.” Sutton v.
United Air Lines, Inc., 527 U.S. 471, 478 (1999). Exercising
that authority in 1991 shortly after the ADA was adopted, the
EEOC promulgated regulations interpreting sections 12113(a)
and (b), which create a defense to liability when an applicant or
employee fails to satisfy appropriate “qualification standards.”
56 Fed. Reg. 35726, 35730 (July 26, 1991). Those regulations
define “qualification standards” to mean “personal and
professional attributes including * * * physical, medical, safety
and other requirements established by a covered entity” as
eligibility requirements for the job. 29 C.F.R. § 1630.2(q).
These regulations also provide that the qualification standard
 15

defense is satisfied where an applicant or employee poses “a

significant risk of substantial harm to the health or safety of the
individual or others that cannot be eliminated or reduced by
reasonable accommodation.” Id. § 1630.2(r) (emphasis added).
The EEOC explained that including threats to the “health or
safety of the individual” as a defense “is consistent with the
legislative history of the ADA and the case law interpreting
section 504 of the Rehabilitation Act.” 56 Fed. Reg. at 35730.
The EEOC has also emphasized in guidance that “[a]n
employer may require that an individual not pose a direct threat
of harm to his or her own safety or health.” EEOC, A Technical
Assistance Manual on the Employment Provisions (Title I) of
the Americans with Disabilities Act IV-14 (Jan. 1992), C.A.
App. 549. The determination that such a direct threat exists
must be based—like Chevron’s determination here—on “valid
medical analyses” showing “specific risk” to the “particular
individual,” not on “stereotypes, patronizing assumptions,” or
“generalized fears.” Ibid. Hence, for example, an employer is
not required “to hire an individual disabled by narcolepsy who
frequently and unexpectedly loses consciousness to operate a
power saw or other dangerous equipment.” Ibid.
The Ninth Circuit majority recognized that “Title I contains
an explicit grant of regulatory authority to the EEOC,”
acknowledged that the EEOC’s “implementing regulations * * *
state that an employer may assert a ‘direct threat’ defense with
respect to individuals who pose a threat only to their own health
or safety,” but “reject[ed]” that interpretation on the theory that
it is inconsistent with the ADA’s language and legislative
history. App., infra, 11a-12a & n.8. The Ninth Circuit’s
rejection of a consistent, decade-old interpretation, formally
promulgated by the agency Congress charged with
implementing the ADA, itself warrants this Court’s
intervention.
 16

Unlike the Ninth Circuit, other courts of appeals have

explicitly followed the EEOC’s regulations. For example,
relying on ADA section 12113 and 29 C.F.R. § 1630.2(r), the
Eleventh Circuit has held that “[a]n employer may fire a
disabled employee if the disability renders the employee a
‘direct threat’ to his own health or safety.” Moses v. American
Nonwovens, Inc., 97 F.3d 446, 447 (11th Cir. 1996). Applying
that standard, the court affirmed the award of summary
judgment against an epileptic employee. The court observed
that the employee, who was at “significant risk” of having
“seizures on the job” that were not controlled by medication,
“sat on a platform above fast-moving press rollers” and
“worked next to exposed machinery that reached temperatures
of 350 degrees.” Id. at 447-448. See also LaChance v. Duffy’s
Draft House, Inc., 146 F.3d 832, 834-836 (11th Cir. 1998) (a
line cook who used hot equipment and slicing machines and
who experienced epileptic seizures on the job was a “direct
threat” to himself and others; summary judgment for employer);
EEOC v. Blue Cross Blue Shield, 30 F. Supp. 2d 296, 306-307
(D. Conn. 1998) (an employer who reasonably determined that
an applicant for a burdensome kitchen job would face
“potentially serious health risks, including stroke, heart attack,
or death,” could “appropriately rescin[d]” its job offer pursuant
to 29 C.F.R.. § 1630.2(r)).
The Tenth Circuit reached the same conclusion in Borgialli
v. Thunder Basin Coal Co., 235 F.3d 1284 (10th Cir. 2000).
There, the defendant fired an employee with psychiatric
disorders “who worked with explosives and who harbored a
grudge against his supervisor, threatened suicide and perhaps
injury to others.” Id. at 1294. Citing 29 C.F.R. § 1630.2(r) and
the Eleventh Circuit’s decision in Moses, the court affirmed
summary judgment in favor of the employer because “[u]nder
the ADA it is a defense to a charge of discrimination if an
employee poses a direct threat to the health or safety of himself
or others,” and because the employer’s doctors had reasonably
concluded that the employee presented “a direct safety threat to
 17

himself and to the other workers.” Id. at 1288, 1290, 1292

(emphasis added).
3. Safety-based qualification standards. The EEOC has taken
the position that threats to self or others must be analyzed in
terms of the “direct threat” defense and are not otherwise
relevant under the ADA. See Albertson’s, Inc. v. Kirkingburg,
527 U.S. 555, 569 (1999). This Court in Albertson’s “question-
ed whether the Government’s interpretation, which might
impose a higher burden on employers to justify safety-related
qualification standards than other job requirements, is a sound
one,” but had “no need to confront the validity of th[at]
reading.” Id. at 569 n.15; see also id. at 578 (Thomas, J.,
concurring) (suggesting that safety issues “might also be
relevant to the question whether respondent was a ‘qualified
individual’”). This case squarely presents the issue reserved for
future decision in Albertson’s, as to which the circuits are in
conflict.
The Ninth Circuit held that satisfying the demands of the
“direct threat” defense is the “exclusive” way in which
employers may take account of safety concerns, reasoning that
otherwise “definitional sleight-of-hand” would “circumvent”
the limits of the defense, including Congress’s supposed
“decision to exclude a paternalistic risk-to-self defense.” App.,
infra, 14a, 16a. The Ninth Circuit noted, however (id. at 17a
n.11), that other courts of appeals disagree. As we have already
demonstrated (supra, pp. 13-14), the First and Seventh Circuits
held in Amego and Koshinski that safety risks may prevent a
person from being a “qualified individual” within the meaning
of ADA section 12112(a), precluding any need to consider the
“direct threat” defense. Recently, the Fifth Circuit agreed that
“safety requirements are not exclusively cabined into the direct
threat test.” EEOC v. Exxon Corp., 203 F.3d 871, 873 (5th Cir.
2000). Rather, “[i]n cases where an employer has developed a
general safety requirement for a position”—as Chevron did
with regard to its plant helper position—“safety is a qualifi-
 18

cation standard no different from other requirements defended

under the ADA’s business necessity provision,” section
12113(a). Id. at 874.
Unlike the Ninth Circuit, the First, Fifth, and Seventh
Circuits thus recognize that safety issues may be addressed
either as part of the section 12112(a) inquiry into whether a
person is a “qualified individual” (Amego, Koshinski) or as part
of a “qualification standard” authorized by section 12113(a)
(Exxon). This case presents an ideal vehicle to address the issue
left open in Albertson’s and to end confusion in the lower courts
over how safety requirements fit into the ADA’s scheme.4
4. Rehabilitation Act precedents. This Court has made clear
that construction of the ADA is to be “informed by interpreta-
tions of parallel definitions” in the Rehabilitation Act, because
Congress’ repetition of those provisions in the ADA indicates
its “intent to incorporate [those provisions’] administrative and

4
The Ninth Circuit majority purported to distinguish Amego and
Exxon on the ground that both involved claims that an individual
posed a threat to others, not himself. App., infra, 17a n.11. In fact,
that makes the conflict even more compelling. The First and Fifth
Circuits held that qualification standards requiring that a person not
pose a risk to others are not cabined by the “direct threat” defense,
even though the statute describes the defense in terms of “a direct
threat to the health or safety of other individuals in the workplace”
(§ 12113(b)). Those circuits would hardly treat qualification standards
requiring that a person not pose a risk to himself as restricted to the
“direct threat” defense when the statutory provision creating that
defense makes no mention at all of threats to self. As we discuss
below, infra, Part II, the fact that threats to self are not mentioned in
section 12113(b) strongly suggests that they should be analyzed
instead under sections 12112(a) and 12113(a). The Ninth Circuit’s
attempted distinction in any event does not account for Koshinski,
which analyzed a threat to self under section 12112(a)’s “qualified
individual” rubric, and ignores the fact that the suicidal plaintiff in
Amego also posed a threat to herself.
 19

judicial interpretations as well.” Bragdon v. Abbott, 524 U.S.

624, 631, 645 (1998); see also 42 U.S.C. § 12201(a); 29 U.S.C.
§ 794(d). The Ninth Circuit’s ruling, however, contradicts other
courts of appeals’ and the EEOC’s interpretation of virtually
identical provisions of the Rehabilitation Act.
Like ADA section 12112(a), section 504(a) of the
Rehabilitation Act, 29 U.S.C. § 794(a), extends protection to
“qualified” individuals with a disability. Since 1978, EEOC
regulations have defined that term to mean a person who “can
perform the essential functions of the position in question
without endangering the health and safety of the individual or
others.” 43 Fed. Reg. 12293, 12295 (Mar. 24, 1978) (emphasis
added); 29 C.F.R. § 1614.203(a)(6) (2000). Courts of appeals
prior to passage of the ADA likewise interpreted section 504’s
“qualified individual” language to exclude persons who posed
a significant risk to themselves. E.g., Doe v. New York Univ.,
666 F.2d 761, 777 (2d Cir. 1981) (if a student’s mental disorder
would result in a relapse into “behavior harmful to herself and
others,” including suicidal and other self-destructive acts, she
would not be “qualified” for admission to medical school;
Congress did not intend “to force institutions to accept * * *
persons who pose a significant risk of harm to themselves or
others”). Thus, when Congress enacted ADA section 12112(a),
the terms it used had a settled regulatory and judicial
interpretation, which Congress “inten[ded] to incorporate.”
Bragdon, 524 U.S. at 645; see 1 House Comm. on Education
and Labor, 101st Cong., 2d Sess., Legislative History of Pub. L.
101-336, Americans with Disabilities Act 485 (Comm. Print
1991) (“Leg. Hist.”) (the ADA “is based on the same standard
for ‘qualified’ person with a disability that has existed for years
under the Rehabilitation Act”); see also id. at 71, 100, 124.
The courts of appeals continue consistently to hold that
persons who would harm themselves in carrying out the
essential functions of the job are not “qualified individuals”
within the meaning of Rehabilitation Act section 504(a). See,
 20

e.g., Knapp v. Northwestern Univ., 101 F.3d 473 (7th Cir. 1996)
(student with heart condition who would risk death playing
basketball was not qualified for university’s basketball
program); Chandler v. City of Dallas, 2 F.3d 1385, 1393-1395
(5th Cir. 1993) (person with diabetes or uncorrectably impaired
vision is not “qualified” for a driver’s job that “presents a
genuine substantial risk that he could injure himself or others”);
Chiari v. City of League City, 920 F.2d 311, 317 (5th Cir. 1991)
(a person with Parkinson’s disease was not “qualified” to be a
construction inspector; “a significant risk of personal injury can
disqualify a handicapped individual from a job if the employer
cannot eliminate the risk”). The Ninth Circuit erroneously
dismissed this line of cases and the EEOC’s regulation as
“irrelevant to [its] inquiry” because they interpret the
Rehabilitation Act rather than the ADA. App., infra, 16a n.10.
This Court squarely held in Bragdon that judicial and regulatory
interpretations of Rehabilitation Act language repeated in the
ADA are highly pertinent to understanding the ADA. The
conflict between the Ninth Circuit’s interpretation of the term
“qualified individual” in the ADA and the EEOC’s and other
courts of appeals’ interpretation of the same provision in the
Rehabilitation Act warrants this Court’s review.5

5
Contrary to the Ninth Circuit’s ruling (App., infra, 16a n.10),
Congress’ inclusion of the “direct threat defense” in ADA section
12113(b) does not show that it intended to depart from the Rehab-
ilitation Act understanding of the term “qualified.” Had that been
Congress’ intent, it would have said so, rather than simply reenacting
the “qualified individual” language of the Rehabilitation Act that had
consistently been interpreted to permit exclusion of persons whose
performance of the job would cause harm to themselves. Moreover,
a 1988 amendment added an explicit “direct threat” provision to the
Rehabilitation Act that denied protection to persons with commun-
icable diseases who “would constitute a direct threat to the health or
safety of other individuals.” 29 U.S.C. § 705(20)(D). As the decisions
cited in the text demonstrate, courts understood that the existence of
this provision did not change the meaning of the term “qualified.”
 21

5. Unless this Court resolves these serious conflicts now,

employers in the Tenth and Eleventh Circuits will be able to
rely on EEOC regulations defining the “direct threat” defense
to encompass threats to self; employers in the First, Fifth, and
Seventh Circuits will be able to deny employment to persons
who pose a threat to themselves because they are not
“qualified” or fail safety-based “qualification standards”; but
businesses in the Ninth Circuit will have to employ workers
who will suffer injury or death on the job. Nationwide
businesses with unified employment policies will as a practical
matter have to comply with the Ninth Circuit’s ruling
everywhere. Moreover, any company doing business within the
Ninth Circuit may be sued there for ADA violations, wherever
those violations are alleged to have occurred, and so will
potentially be subject to the Ninth Circuit’s misconstruction of
the Act. Wasteful litigation over the question presented also is
sure to occur in circuits that have not yet addressed the issue.
This Court should grant certiorari to end this confusion and
ensure uniform application of the ADA throughout the Nation.
II. THE NINTH CIRCUIT’S DECISION DIS-
REGARDS THE ADA’S PLAIN LANGUAGE AND
NULLIFIES CONGRESSIONAL INTENT
According to the Ninth Circuit majority, threats to a
worker’s own health have no relevance under the ADA: the
“direct threat” defense is the “exclusive way” in which threats
to health may be taken into account, and that defense applies
only when harm is threatened to others. App., infra, 14a. That
faulty interpretation does not fit the plain language of the ADA,
is contradicted by well established canons of statutory
interpretation, and is refuted by the legislative history. It fails
to give deference to the EEOC’s reasonable interpretation to the
contrary. It also relies on a patent misreading of this Court’s
Title VII jurisprudence. Absent this Court’s intervention, the
Ninth Circuit’s “Pickwickian” decision will lead to “absurd
results” that undermine worker protection laws and force
 22

unwilling employers to assist workers in disruptive and

demoralizing acts of self-destruction. Id. at 23a.
1. Three provisions of the ADA deal with a person’s
qualification for employment. First, the statute’s primary bar on
discrimination against the disabled, section 12112(a), extends
protection only to a “qualified individual with a disability,”
defined as a disabled person who “can perform the essential
functions of the employment position.” 42 U.S.C. § 12111(8).
Second, the Act provides that it is a defense to liability that a
disabled person has been screened out of a job by the
application of “qualification standards” that are “job-related and
consistent with business necessity.” Id. § 12113(a). Finally, the
Act addresses a particular “qualification standard,” specifying
that an employer “may include a requirement that an individual
shall not pose a direct threat to the health or safety of other
individuals in the workplace.” Id. § 12113(b); see also
§ 12111(3) (defining “direct threat” as a “significant risk to the
health or safety of others”).
The sum total of the Ninth Circuit’s textual analysis was to
observe that section 12113(b) does not mention threats to self,
and to conclude under the canon of interpretation expressio
unius est exclusio alterius that threats to self therefore cannot
be included within the “direct threat” defense. App., infra, 6a-
7a. The expressio unius maxim, however, “serves only as an aid
in discovering the legislative intent when that is not otherwise
manifest,” and here “too much is claimed for it.” United States
v. Barnes, 222 U.S. 513, 519 (1912).
By its plain terms, section 12113(b) sets forth only one
example of a permissible qualification standard: a qualification
standard “may include” a requirement that others not be put at
risk. The provision therefore does not purport to be an exclusive
list of safety-related qualification standards; it merely removes
doubt that avoiding harm to others is one valid qualification
standard. Section 12113(b) says nothing else about the meaning
 23

of the terms “qualification standard” and “qualified individual”

in the Act’s other provisions. See Albertson’s, 527 U.S. at 569
(section 12113(b) “appears to be a permissive provision”);
Christensen v. Harris County, 529 U.S. 576, 587-588 (2000)
(the term “may include” is “plainly permissive”); Smith v.
United States, 508 U.S. 223, 230 (1993) (“It is one thing to say
that [a phrase] includes [one use]. But it is quite another to
conclude that, as a result, the phrase also excludes any other
use”) (emphasis in original). Because section 12113(b)
expressly is not exclusive and in no way limits the scope of
sections 12112(a) or 12113(a), the Ninth’s Circuit’s reliance on
the expressio unius maxim was misplaced.
2. The plain language of the ADA shows that posing a
danger to self may disqualify a person for employment. The
term “qualified” means “fitted” by “endowments * * * for a
given purpose” or “having complied with the specific
requirements * * * for an * * *employment.” Webster’s Third
New Int’l Dictionary (1971). It is contrary to common usage
and common sense to suggest that a person whose medical
condition threatens injury or death at a particular job is “fitted”
for that job; he is plainly unfitted. Also, where an employer has
specified the environmental conditions an employee must be
able to tolerate to do a job—as the ADA expressly permits (42
U.S.C. § 12111(8)) and as Chevron did here—an employee who
will be injured or killed by those conditions obviously has not
“complied with the specific requirements” for the job.
Similarly, the term “qualification standards” in section
12113(a) is broad enough to encompass a “standard” requiring
that a person be able to do the job in question without suffering
serious harm or death. The EEOC has recognized as much by
interpreting “[q]ualification standards” to include “personal
* * * attributes” including “medical [and] safety” requirements
established by an employer “which an individual must meet in
order to be eligible for the position” (29 C.F.R. § 1630.2(q)), an
interpretation that is entitled to deference under Chevron,
U.S.A., Inc. v. NRDC, 467 U.S. 837 (1984).
 24

3. Well established canons of statutory construction confirm

that a person who would pose a serious risk to his own health
or life in a job is not qualified for that job. First, as we have
already explained (supra, pp. 18-19), this Court has held that
the ADA is to be construed in light of judicial and regulatory
interpretations of the Rehabilitation Act. Congress clearly
intended that the ADA incorporate principles embodied in the
Rehabilitation Act and its regulations, and that the two laws be
construed to avoid “inconsistent, conflicting standards.” 1 Leg.
Hist. 71, 100, 124. Accordingly, the ADA and Rehabilitation
Act are to be construed in pari materia. See 2B N. Singer,
Statutes and Statutory Construction § 51.03 (6th ed. 2000).
Both before and after passage of the ADA, courts of appeals
have interpreted the concept of a “qualified individual” in the
Rehabilitation Act to exclude a person who will be seriously
harmed by the job as the result of a medical condition. See
supra, pp. 19-20. The EEOC likewise has long defined a
“qualified” person for purposes of the Rehabilitation Act as a
person who can do the job “without endangering the health and
safety of the individual.” 43 Fed. Reg. at 12295. Interpreting the
ADA’s “qualified individual” provision in pari materia with the
virtually identical provisions of the Rehabilitation Act and its
implementing regulation confirms that a person who poses a
significant risk to self is not “qualified” and therefore is outside
the protection of the ADA. See Koshinski, 177 F.3d at 603.
In addition, it is well settled that courts should not interpret
statutes to needlessly conflict with other federal laws or to
produce absurd consequences. E.g., Moragne v. States Marine
Lines, 398 U.S. 375, 400-402 (1970); United States v. X-
Citement Video, Inc., 513 U.S. 64, 69-70 (1994); 2B N. Singer,
supra, § 53.03. The Ninth Circuit’s construction of the ADA
does lead to “absurd results.” App., infra, 23a. To begin with,
it conflicts with “longstanding laws mandating workplace
safety.” Id. at 22a. The Occupational Safety and Health Act
imposes a duty on every employer to “furnish to each of his
 25

employees employment and a place of employment which are

free from recognized hazards that are causing or are likely to
cause death or serious physical harm to his employees.” 29
U.S.C. § 654(a) (emphasis added). The Occupational Health
and Safety Administration has explained that this obligation
applies equally to the employment of disabled persons. See
OSHA, Standards Interpretation, Employment of Individuals
with Disabilities (Aug. 27, 1997), at www.osha-slc.gov/
OshDoc/Interp_data/I19970827.html (“OSHA’s policy is [that]
if an employee can perform their job functions in a manner
which does not pose a safety hazard to themselves or others, the
fact they have a disability is irrelevant”) (emphasis added).
For example, OSHA standards limit the employment of a
fireman with heart disease, epilepsy, or emphysema; require
that employees with sores not work in spray-finishing
operations; and mandate removal of employees who exceed
specified blood levels of lead and other substances from jobs
involving exposure to those substances. See 1 OSHA Comp.
Guide (CCH) ¶ 1161, at 1585-1586 (2000). State laws likewise
impose obligations on employers to keep all of their workers
safe, often providing criminal as well as civil penalties for
failing to do so. See App., infra, 21a-22a; Cal. Lab. Code
§ 6402 (“No employer shall * * * permit any employee to go or
be in any employment or place of employment which is not safe
and healthful”). Yet the Ninth Circuit labels such worker
protection policies “paternalistic,” and allows an employer to
deny a sick worker employment only when he reaches the point
of being “unable to perform [the job’s] duties.” App., infra,
16a-17a. Given that “law books * * * overflow with statutes
and rules designed by representative governments to protect
workers from harm,” this cannot be a correct interpretation of
the ADA. Id. at 21a; Albertson’s, 527 U.S. at 573 (“federal
safety rules * * * limit application of the ADA as a matter of
law”); 29 C.F.R. § 1630.15(e).
 26

The Ninth Circuit’s interpretation has other harmful

consequences. It would expose employers to tort suits by
injured workers and their families. The majority dismissed that
risk on the ground that state tort laws inconsistent with ADA
obligations would be impliedly preempted. App., infra, 13a.
Judge Trott correctly observed, however, that relying on “the
long, expensive, and unpredictable litigation road” to preempt
state laws is “highly pernicious” when the issue can be avoided
by a plain-language interpretation of the ADA, and is “a thin
reed at best.” Id. at 23a. As Judge Trott also noted, the Ninth
Circuit’s rule “requir[ing] employers knowingly to endanger
workers” imposes an “unconscionable” “moral burden” on
employers. Ibid. No reasonable interpretation of the ADA
would impose a legal obligation on an employer knowingly to
put a worker in the way of serious or fatal harm.
4. The ADA’s legislative history contradicts the Ninth
Circuit’s ruling. The court relied on a single floor statement by
Senator Kennedy that “employers may not deny a person an
employment opportunity based on paternalistic concerns
regarding the person’s health.” App., infra, 8a, quoting 136
Cong. Rec. 17377 (1990). Senator Kennedy commented that
“an employer could not use as an excuse for not hiring a person
with HIV disease the claim that the employer was simply
‘protecting the individual’ from opportunistic diseases to which
the individual might be exposed. That is a concern that should
rightfully be dealt with by the individual, in consultation with
his or her private physician.” Ibid.
The Ninth Circuit attached too much weight to Senator
Kennedy’s personal and “frankly partisan statements about the
meaning of” the direct threat defense, which “cannot plausibly
be read as reflecting any general agreement.” Landgraf v. USI
Film Prods., 511 U.S. 244, 262 (1994); see, e.g., Chrysler
Corp. v. Brown, 441 U.S. 281, 311 (1979) (“The remarks of a
single legislator, even the sponsor, are not controlling in
analyzing legislative history”). Senator Kennedy’s example of
 27

paternalistic fear that a person with HIV would contract

opportunistic infections—a speculative fear that could bar a
worker from any job—is in any event far removed from the
situation here. Chevron had specific, unanimous medical advice
that documented conditions in the refinery would exacerbate
Echazabal’s liver disease and probably kill him.
“[T]he House and Senate commitee reports on the ADA
flatly contradict” the court of appeals’ reading of the statute.
Board of Trustees v. Garrett, No. 99-1240, slip op. at 13 (Feb.
21, 2001). Congress aimed in the ADA to bar decisionmaking
about employment of disabled persons based on “generaliza-
tions, misperceptions, ignorance, irrational fears, patronizing
attitudes, [and] pernicious mythologies.” 1 Leg. Hist. 125
(Senate Report). None of those improper motives formed the
basis for Chevron’s decision. It had specific, unrebutted
medical reports that Echazabal would be seriously endangered
by performing the plant helper job. Congress fully recognized
that the results of a post-offer medical examination might
“mak[e] the individual not qualified for the job.” Id. at 137. The
House Report thus states that, while “[g]eneralized fear about
risks from the employment environment, such as exacerbation
of the disability caused by stress,” do not disqualify a person
from employment, an employer may deny work based on “a
direct impact on the ability of the person to do their actual job
duties without imminent, substantial threat of harm.” Id. at 347.
The clear import of this passage is that a real and substantial
risk of “exacerbation of the disability” is a proper ground to
deny employment.6

6
The Ninth Circuit also incorrectly relied on Dothard v. Rawlinson,
433 U.S. 321 (1977), and International Union v. Johnson Controls,
Inc., 499 U.S. 187 (1991). App., infra, 13a, 15a n.9. In
Dothard—which held that women may be excluded from contact
positions in a high-security male prison—this Court stated that “it is
impermissible under Title VII to refuse to hire [on] the basis of
 28

5. Once the relationship between sections 12113(a) and (b)

is understood—the “direct threat” defense is a “subset” of the
more general “qualifications standards” defense (1 Leg. Hist.
423)—the logic of the EEOC’s “direct threat” regulation is
evident. The EEOC determined in 1991, immediately after the
ADA was adopted, that section 12113(a) “qualification
standards” may properly include “personal attributes” including
“medical [and] safety” requirements. 29 C.F.R. § 1630.2(q).
Rather than treat those requirements separately from the “threat
to others” qualification standard set forth in section 12113(b),
the EEOC treated all medical and safety standards—whether
directed to avoiding harm to others or to self—as subject to the
same set of substantive and evidentiary rules, using the “direct
threat” rubric. 29 C.F.R. §§ 1630.2(r), 1630.15(b)(2). Although
the threat to self and threat to others qualification standards
have different statutory sources—sections 12113(b) and (a)

stereotyped characterizations of the sexes.” 433 U.S. at 333.

Chevron’s decision not to hire Echazabal was based not on
stereotypes but individualized consideration of Echazabal’s medical
condition. Johnson Controls held that an employer violated Title VII
when it barred women of childbearing age from jobs that involved
contact with lead to protect their fertility and fetuses. Because lead
also has a “debilitating effect * * * on the male reproductive system,”
singling out women was blatantly discriminatory. 499 U.S. at 198.
Another federal statute prohibited discrimination based on the
potential for pregnancy. Id. at 198-199. In addition, OSHA had
concluded that there was no scientific basis to exclude women of
childbearing age from jobs involving lead exposure, and the employer
kept lead exposure levels below the maximum amount recommended
by OSHA. Id. at 208. None of those factors is involved here.
Speculative future harm to speculative future pregnancies of fertile
women as a class is far removed from the specific, individualized
medical advice given to Chevron that exposure to toxins in its
refinery would exacerbate Echazabal’s liver condition and probably
kill him. The Ninth Circuit’s misconstruction of Dothard and Johnson
Controls is itself a reason to grant review.
 29

respectively—the EEOC has elected to make them subject to a

single set of regulatory requirements. That reasonable decision
by the agency Congress specifically charged with implementing
these provisions is entitled to deference under Chevron. The
Ninth Circuit erred in refusing to defer to the EEOC’s
interpretation of the ADA’s qualification standards provisions.
6. The remaining question is whether the Ninth Circuit erred
in holding that the “direct threat” defense is the exclusive means
to defend a decision not to hire a person because of medical
risks. App., infra, 14a. The EEOC has taken the litigating
position that threats to self and others are relevant only as a
defense to liability and play no role in determining whether a
person is “qualified” in the first place. This Court questioned
that position in Albertson’s, 527 U.S. at 569 n.15, because it
irrationally “impose[s] a higher burden on employers to justify
safety-related qualification standards than other job require-
ments.” The Seventh Circuit has rejected efforts to cabin all
safety-related inquiries within the “direct threat” defense,
holding that an employee fails to make a prima facie showing
that he is a “qualified individual” under section 12112(a) if he
does not produce evidence “as of the time of the employment
decision” that he would not be harmed by doing the job.
Koshinski, 177 F.3d at 602-603. In such a case, there is no need
to “reach the question of whether the [employer] had a valid
defense”: the employee simply is outside the Act’s protections.
Id. at 603. See also Albertson’s, 527 U.S. at 578 (an ADA
plaintiff “bears the burden of proving * * * that he is a qualified
individual”) (Thomas, J., concurring).
How threats to self and others are to be analyzed under the
ADA is of exceptional practical importance in many suits filed
in federal courts throughout the country. We believe that the
correct analysis is the one adopted by the Seventh Circuit in
Koshinski. Once the employer has determined by medical
testing or otherwise that an applicant poses a significant risk of
harm to self or others in performing the essential functions of
 30

the job, the applicant has the burden of coming forward with
evidence, reasonably available to the employer when the
employment decision was made, that the applicant could
perform those tasks safely. If the applicant fails to produce such
evidence, he has failed to make out a prima facie case that he
is a “qualified individual.” If the applicant does satisfy his
initial burden, the question then becomes whether the “direct
threat to self or others” defense applies. This interpretation
ensures that, before an applicant may pursue actual and punitive
damages claims against an employer for an ADA violation,
there is evidence that the employer had reason to believe the
applicant could do the job without injuring or killing himself or
others. Like the scheme used in Title VII disparate treatment
cases, this “division of intermediate evidentiary burdens” would
bring the “litigants and the court expeditiously and fairly” to the
ultimate question whether unlawful discrimination has
occurred. Texas Dep’t of Cmty. Affairs v. Burdine, 450 U.S.
248, 253 (1981).
CONCLUSION
The petition for a writ of certiorari should be granted.7
Respectfully submitted.

7
The court of appeals vacated the judgment as to Echazabal’s
Rehabilitation Act and FEHA claims and remanded those claims for
reconsideration because “the district court treated the substantive
standards for liability under [the ADA and those two] statutes as
identical.” App., infra, 18a n.12. In a separate opinion, the court
reversed the grant of summary judgment to Chevron on Echazabal’s
state law interference with contract claim. Id. at 25a-29a. The court
made clear, however, that its ruling as to that count too turned on its
interpretation of the ADA: Chevron’s letter to Irwin was not
“justified” under the ADA, so Chevron had not made out the
affirmative defense of justification. Id. at 28a-29a. Accordingly,
reversal of the Ninth Circuit on the question presented would require
a remand as to all of respondent’s claims.
ROBERT P. DAVIS STEPHEN M. SHAPIRO
EVAN M. TAGER Counsel of Record
Mayer, Brown & Platt JAMES D. HOLZHAUER
1909 K Street, N.W. Mayer, Brown & Platt
Washington, D.C. 20006 190 South LaSalle Street
(202) 263-3000 Chicago, Illinois 60603
(312) 782-0600
JON P. KARDASSAKIS
Hawkins, Schnabel, Lindahl
& Beck LLP
600 South Figueroa Street
Suite 1500
Los Angeles, California 90017
(213) 488-3900

MARCH 2001