Echazabal v. Chevron USA, Inc.

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
No. 98-55551 (D.C. No. v. CV-97-03498-LGB - Central District of California)

MARIO ECHAZABAL, Plaintiff-Appellant,

CHEVRON USA, INC.; IRWIN INDUSTRIES, INC., Defendant-Appellee.

Appeal from the United States District Court
for the Central District of California
Lourdes G. Baird, District Judge, Presiding

Argued and Submitted
November 3, 1999--Pasadena, California
Submission Vacated November 15, 1999
Resubmitted January 25, 2000

Before: Myron H. Bright,* Stephen Reinhardt, and
Stephen S. Trott, Circuit Judges.

*The Honorable Myron H. Bright, Senior United States Circuit Judge
for the Eighth Circuit Court of Appeals, sitting by designation.

Larry Minsky, Sievers & Minsky, Long Beach, California, for
the plaintiff-appellant.

Jon P. Kardassakis, Hawkins, Schnabel, Lindahl & Beck, Los
Angeles, California, for the defendant-appellee.

Geoffrey L. Carter, Washington, D.C., for amicus Equal
Employment Opportunity Commission.

ORDER
The Opinion filed on May 23, 2000 is amended to include
the attached dissent by Judge Trott.

OPINION
REINHARDT, Circuit Judge:
On this appeal, the principal question we consider is
whether the "direct threat" defense available to employers
under the Americans with Disabilities Act applies to employees,
or prospective employees, who pose a direct threat to
their own health or safety, but not to the health or safety of
other persons in the workplace. We conclude that it does not.

I.
Mario Echazabal first began working at Chevron's oil
refinery in El Segundo, California in 1972. Employed by various
maintenance contractors, he worked at the refinery, primarily
in the coker unit, nearly continuously until 1996, when
the events that gave rise to this litigation occurred.

In 1992, Echazabal applied to work directly for Chevron at
the same coker unit location. After determining that he was
qualified for the job, Chevron extended him an offer contingent
on his passing a physical examination. A preemployment
physical examination conducted by Chevron's regional physician
revealed that Echazabal's liver was releasing certain
enzymes at a higher than normal level. Based on these results,
Chevron concluded that Echazabal's liver might be damaged
by exposure to the solvents and chemicals present in the coker
unit. For that reason, Chevron rescinded its job offer. Nevertheless,
Echazabal continued to work for Irwin, a maintenance
contractor, throughout the refinery -- including at the coker
unit. Chevron made no effort to have him removed from his
assignment.

After learning of the enzyme test results, Echazabal consulted
with several doctors and eventually was diagnosed with
asymptomatic, chronic active hepatitis C. Throughout his
treatment, Echazabal told each physician who treated him
about the type of work that he did. In addition, at least one of
his physicians was provided with a document that detailed the
specific environmental hazards present in the vicinity of the
coker unit at the refinery. None of these physicians advised
Echazabal that he should stop working at the refinery because
of his medical condition.

In 1995, Echazabal again applied to Chevron for a position
at the coker unit. As it had done before, Chevron made
Echazabal a job offer that was contingent upon his passing a
physical examination. Once again, Chevron eventually
rescinded its job offer on the ground that there was a risk that
Echazabal's liver would be damaged if he worked at the coker
unit. Unlike in 1992, however, Chevron did not simply allow
Echazabal to continue working for Irwin at the refinery.
Instead, Chevron wrote Irwin and asked that it "immediately
remove Mr. Echazabal from [the] refinery or place him in a
position that eliminates his exposure to solvents/chemicals."

Immediately after losing his position at the refinery,
Echazabal filed a complaint with the Equal Employment
Opportunity Commission. He subsequently filed a complaint
in state court that alleged, among other things, that both Chevron
and the maintenance contractor had discriminated against
him on the basis of a disability, in violation of the Americans
with Disabilities Act (ADA). After Chevron removed the
action to federal court, the district court granted Chevron's
motion for summary judgment on all of Echazabal's claims.
The court then stayed the proceedings between Echazabal and
the maintenance contractor (it had denied the contractor's
summary judgment motion) and certified for appeal its grant
of summary judgment in favor of Chevron.[1]

II.
On appeal, Chevron argues that it may defend its decision
not to hire Echazabal on the ground that it reasonably
concluded that Echazabal would pose a direct threat to his
own health if he worked at the refinery. It acknowledges that,
with respect to "otherwise qualified" individuals, the ADA
prohibits employers from "using qualification standards . . .
that screen out or tend to screen out an individual with a disability
or a class of individuals with disabilities. " 42 U.S.C.
§ 12112(b)(6) (1994); see also 42 U.S.C. § 12113(a). Chevron contends, however, that its refusal to hire Echazabal falls
under an affirmative defense that the ADA provides to this
charge of discrimination. In the "defenses" section of the Act,
the statute provides that an employer may impose, as a "qualification
standard," "a requirement that an individual shall not
pose a direct threat to the health or safety of other individuals
in the workplace." 42 U.S.C. § 12113 (emphasis added).[2]

The question before us is whether the "direct threat"
defense includes threats to one's own health or safety. That is,
we must decide whether the provision permits employers to
refuse to hire an applicant on the ground that the individual,
while posing no threat to the health or safety of other individuals
in the workplace, poses a direct threat to his own health
or safety. As we noted recently in Nunes v. Wal-Mart Stores,
Inc., 164 F.3d 1243 (9th Cir. 1999), "[w]e have not yet ruled
on whether the direct threat defense includes threats to one's
self."[3] Id. at 1247 n.1. In addition to being a question of first
impression in this Circuit, the issue has received almost no
treatment in other Circuits. While several cases do state, in
passing dicta, that the direct threat defense includes threats to
oneself, see LaChance v. Duffy's Draft House, Inc., 146 F.3d
832 (11th Cir. 1998); EEOC v. Amego, Inc., 110 F.3d 135 (1st
Cir. 1997); Daugherty v. City of El Paso, 56 F.3d 695 (5th
Cir. 1995), only the Eleventh Circuit appears to have held that
the defense encompasses such threats. See Moses v. America
Nonwovens, Inc., 97 F.3d 446, 447 (11th Cir. 1996). The
Moses court provides us with no guidance, however, because
it gives no explanation for its holding. Instead, it simply
asserts, without analysis, that the ADA's direct threat defense
applies to threats to the disabled individual himself.[4]

In order to resolve the scope of the direct threat defense,
we turn first to the language of provision itself. Here, that language
is dispositive. The direct threat defense permits
employers to impose a "requirement that an individual shall
not pose a direct threat to the health or safety of other individuals
in the workplace." On its face, the provision does not
include direct threats to the health or safety of the disabled
individual himself. Moreover, by specifying only threats to
"other individuals in the workplace," the statute makes it clear
that threats to other persons -- including the disabled individual
himself -- are not included within the scope of the defense.[5]

Expressio unius est exclusio alterius. Finally, the obvious
reading of the direct threat defense as not including threats to
oneself is supported by the definitional section of Title I,
which states that "[t]he term `direct threat' means a significant
risk to the health or safety of others that cannot be eliminated
by reasonable accommodation." 42 U.S.C.§ 12111(3)
(emphasis added). The fact that the statute consistently
defines the direct threat defense to include only threats to others
eliminates any possibility that Congress committed a
drafting error when it omitted from the defense threats to the
disabled individual himself. Cf. United States Trustee v. Garvey,
Schubert & Barer (In re Century Cleaning Servs., Inc.),
195 F.3d 1053, 1057-58 (9th Cir. 1999). For these reasons, we
conclude that the language of the direct threat defense plainly
does not include threats to the disabled individual himself.

Although we need not rely on it, the legislative history
of the ADA also supports the conclusion that the direct threat
provision does not include threats to oneself. The term "direct
threat" is used hundreds of times throughout the ADA's legislative
history -- in the final conference report, the various
committee reports and hearings, and the floor debate. See,
e.g., H.R. Conf. Rep. No. 101-596, at 57, 60, 77, 84 (1990),
reprinted in 1990 U.S.C.C.A.N. 565, 566, 569, 586, 593. In
nearly every instance in which the term appears, it is accompanied
by a reference to the threat to "others " or to "other
individuals in the workplace." Not once is the term accompanied
by a reference to threats to the disabled person himself.
In addition, both the Report of the House Judiciary in the
Report of the Committee on Education and Labor explain that
the direct threat provision is intended to codify the Supreme
Court's holding in School Bd. of Nassau County v. Arline, 480
U.S. 273 (1987) -- a case that defines "[t]he term `direct
threat' [to] mean[ ] a significant risk to the health or safety of
others that cannot be eliminated by reasonable accommodation."
H.R. Rep. No. 101-485, pt. 3, at 34, 45-46 (1990)
(emphasis added) (citing Arline), reprinted in 1990
U.S.C.C.A.N. 445, 457; see also H.R. Rep. No. 101-485, pt.
2, at 76, reprinted in 1990 U.S.C.C.A.N. 303, 359. While the
House Judiciary Report notes that the ADA extends the Arline
standard "to all individuals with disabilities, and not simply
to those with contagious diseases or infections, " H.R. Rep.
No. 101-485, pt. 3, at 45, reprinted in 1990 U.S.C.C.A.N.
445, at 468, it says nothing about extending the standard to
cover a disabled person whose employment would be harmful
to himself as opposed to other individuals. Finally, the following
statement made by Senator Kennedy, a co-sponsor of the
ADA, also strongly bolsters our reading of the statute:

136 Cong. Rec. S9684-03, at S9697 (1990).[6] In short, the legislative history convincingly supports the unambiguous wording
of the direct threat defense.

Congress's decision not to include threats to one's own
health or safety in the direct threat defense makes good sense
in light of the principles that underlie the ADA in particular
and federal employment discrimination law in general. As
Senator Kennedy noted in the statement quoted above, the
ADA was designed in part to prohibit discrimination against
individuals with disabilities that takes the form of paternalism.
This goal is codified in the Act itself: in the "Findings"
section of the ADA, Congress concluded that "overprotective
rules and policies" are one form of discrimination confronting
individuals with disabilities. 42 U.S.C. § 12101(a)(5); see also
H.R. Rep. No. 101-485, pt. 2, at 74, reprinted in 1990
U.S.C.C.A.N. 303, 356 (noting that "[p]aternalism is perhaps
the most pervasive form of discrimination for people with disabilities").

More generally, courts have interpreted federal employment
discrimination statutes to prohibit paternalistic employment policies. The Supreme Court's interpretation of Title VII
in Dothard v. Rawlinson, 433 U.S. 321 (1977), and International
Union, United Auto. Aerospace & Agric. Implement
Workers of Am., UAW v. Johnson Controls, Inc., 499 U.S. 187
(1991), provides a good example of this principle. In Dothard,
the Court stated that "[i]n the usual case, the argument that a
particular job is too dangerous for women may appropriately
be met by the rejoinder that it is the purpose of Title VII to
allow the individual woman to make that choice for herself."
433 U.S. at 335. While the Court permitted the employer in
that case to hire only male guards in contact areas of maximum
security male penitentiaries, it did so only because more
was at stake than the "individual woman's decision to weigh
and accept the risks of employment." Id. Sex was a bona fide
occupational qualification, the Court concluded, because the
employment of a female guard would, due to the guard's sex,
create a real threat to the safety to others if violence broke
out. See id. at 336. In Johnson Controls , the Court reiterated
"that danger to a woman herself does not justify discrimination."
499 U.S. at 202 (citing Dothard). The court there held
that the threats of lead exposure to female employees' own
reproductive health did not justify the employer's decision to
exclude women from certain positions at a battery manufacturing
plant. See id. at 206-07. Given Congress's decision in
the Title VII context to allow all individuals to decide for
themselves whether to put their own health and safety at risk,
it should come as no surprise that it would enact legislation
allowing the same freedom of choice to disabled individuals.

Chevron makes two arguments as to why the direct threat
provision should not be given its plain meaning. First, Chevron
argues that we should defer to the EEOC's contrary interpretation
of the ADA. The implementing regulations of Title
I of the ADA promulgated by the EEOC do, as Chevron contends,
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.[7] See 29 C.F.R. § 1630.15(b)(2)
(1999) ("The term `qualification standard' may include a
requirement that an individual shall not pose a direct threat to
the health or safety of the individual or others in the workplace."
(emphasis added)); 29 C.F.R. § 1630.2(r). Our determination
whether a particular regulatory provision is valid
begins with an inquiry into whether we must defer to the
agency's construction, and if so, what level of deference the
agency interpretation is owed. In the present case, we need
not determine what level of deference Title I regulations are
due, because we would reject the EEOC's regulatory interpretation
of the statutory "direct threat" provision even were we
to conclude that Chevron deference is appropriate.[8] Under
Chevron, "[i]f the intent of Congress is clear, that is the end
of the matter; for the court, as well as the agency, must give
effect to the unambiguously expressed intent of Congress."
Chevron, U.S.A., Inc. v. Natural Resources Defense Counsel,
Inc., 467 U.S. 837, 842-43 (1984); see also Zimmerman v.
Oregon Dep't of Justice, 170 F.3d 1169, 1173 (9th Cir. 1999).
As we concluded above, the intent of Congress is clear: the
language of the direct threat defense plainly expresses Congress's
intent to include within the scope of a§ 12113 defense
only threats to other individuals in the workplace. Accordingly,
we reject the EEOC's contrary interpretation.

Second, Chevron suggests that we must ignore Congress's
clear intent because forcing employers to hire individuals who
pose a risk to their own health or safety would expose
employers to tort liability. Because Chevron has not argued
that it faces any costs from tort liability, this question is not
properly before us. See Johnson Controls, 499 U.S. at 210.
Nevertheless, we should note that, in Johnson Controls, the
Supreme Court strongly suggested that state tort law would be
preempted to the extent that it interfered with federal
antidiscrimination law. The Court stated that "we have not
hesitated to abrogate state law where satisfied that its enforcement
would stand as an obstacle to the accomplishment and
execution of the full purposes and objectives of Congress."
Johnson Controls, 499 U.S. at 209-10 (internal quotation
marks omitted). Therefore, given that the ADA prohibits
employers from refusing to hire individuals solely on the
ground that their health or safety may be threatened by the
job, state tort law would likely be preempted if it interfered
with this requirement. Moreover, we note that Chevron's concern
over an award of damages reflects a fear that hiring a disabled
individual will cost more than hiring an individual
without any disabilities. The extra cost of employing disabled
individuals does not in itself provide an affirmative defense to
a discriminatory refusal to hire those individuals. See, e.g., 42
U.S.C. § 12112(b)(5)(A) (requiring employers to accommodate
disabled individuals, even when those accommodations
impose additional costs, unless the employer can demonstrate
that the accommodations "would impose an undue hardship
on the operation of the business").

In short, the plain language of the direct threat provision is
dispositive: Section 12113 does not afford a defense on the
basis that the performance of a job would pose a direct threat
to an employee's (or prospective employee's) own health or
safety. See 42 U.S.C. § 12113.

III.
Chevron next contends that, even if the direct threat provision
does not provide it with a defense to its actions, it may
defend its decision not to hire Echazabal on the ground that,
because of the risk of damage to his liver, he is not "otherwise
qualified" to perform the job at issue. Put simply, Chevron's
argument is that the § 12113 "direct threat " defense does not
set forth the exclusive way in which it may defend its decision
not to hire Echazabal because of the risk to his health.

We agree, of course, that the ADA does not require
employers to hire individuals who are not "otherwise qualified."
Only a person who is a "qualified individual with a disability"
is protected from discrimination under the ADA. See
42 U.S.C. § 12112(a) ("No covered entity shall discriminate
against a qualified individual with a disability because of the
disability of such individual . . . ."). According to the Act, the
term "qualified individual with a disability" means:

We do not agree, however, with Chevron's assertion on
appeal that performing the work at the coker unit without posing
a threat to one's own health or safety is an"essential
function" of the coker unit job. Chevron argues that it is an
essential function because "the record establishes that Chevron
did prepare a written description of the job before advertising
it and it incorporated the need for an employee to be
able to tolerate an environment including, among other things,
hydrocarbon liquids and vapors, petroleum, solvents and
oils." According to Chevron, the "requirement " of the job
description that an employee not be susceptible to harm from
the chemicals is an "essential function" of the job simply
because Chevron has chosen to describe it as such.

While we give consideration to an employer's judgment
as to what functions of a job are essential, see 42 U.S.C.
§ 12111(8), an employer may not turn every condition of
employment which it elects to adopt into a job function, let
alone an essential job function, merely by including it in a job
description. Job functions are those acts or actions that constitute
a part of the performance of the job. "The job" at the
coker unit is to extract usable petroleum products from the
crude oil that remains after other refining processes. The job
functions of the "plant helper" position for which Echazabal
applied consist of various actions that help keep the coker unit
running. Chevron does nothing more than add a prohibited
condition to these actual job functions when it asserts that the
job functions at the coker unit consist of performing the
actions that help keep the unit running without posing a risk
to oneself. Were we to ignore the limits of the actual functions
of the job at issue and permit Chevron to add to those func-
tions any condition it chooses to impose in its written job
description, the term "essential function" would be rendered
meaningless.[9] Moreover, Chevron's reading of "essential
functions" would, by definitional slight-of-hand, circumvent
Congress's decision 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.
Accordingly, we reject Chevron's interpretation of what may
constitute an "essential function" of a job.[10]

Given that not posing a risk to one's own health or
safety cannot in itself constitute an essential job function, it
is clear that Chevron's reason for refusing to hire Echazabal
is not related to Echazabal's ability to perform the essential
functions of the job for which he applied.[11] Chevron has never
contended that the risk Echazabal allegedly poses to his own
health renders him unable to perform those duties. Nor would
we accept such an argument in this case were Chevron to
make it. Echazabal worked for Irwin at the coker unit, performing
work similar to the job for which he applied, long
after he was diagnosed with hepatitis. There is no evidence
that the health of his liver ever affected his ability to do the
job. Had Echazabal failed during that period to perform the
essential functions of his work, we seriously doubt that Chevron
would have twice extended him contingent offers to work
at the coker unit.

Accordingly, we hold that the risk that Echazabal's
employment might pose to his own health does not affect the
question whether he is a "qualified individual with a disability."

IV.
For the foregoing reasons, we conclude that the ADA's
direct threat defense means what it says: it permits employers
to impose a requirement that their employees not pose a significant
risk to the health or safety of other individuals in the
workplace. It does not permit employers to shut disabled individuals
out of jobs on the ground that, by working in the jobs
at issue, they may put their own health or safety at risk. Conscious
of the history of paternalistic rules that have often
excluded disabled individuals from the workplace, Congress
concluded that disabled persons should be afforded the opportunity
to decide for themselves what risks to undertake. The
district court's grant of summary judgment to Chevron on
Echazabal's ADA claim is reversed.[12]

REVERSED in part, VACATED in part, and REMANDED
for further proceedings consistent with this opinion.

TROTT, Circuit Judge, dissenting:
Mario Echazabal sues over not getting a job handling livertoxic
substances, i.e., "hydrocarbon liquids and vapors, acid,
caustic, refinery waste water and sludge, petroleum solvents,
oils, greases, and chlorine bleach." He was denied the job
because he suffers from a chronic, uncorrectable, and lifethreatening
viral liver disease -- Hepatitis C -- that most
likely will be aggravated by exposure to these hazardous
materials to the extent that his life will be endangered.

Chevron first discovered Mr. Echazabal's condition in 1992
when he was examined by Dr. Philip Bailey. Dr. Bailey studied
toxicology at the University of Texas and is Board Certified
in preventative occupational medicine. Dr. Bailey
concluded on the basis of an examination of Mr. Echazabal
and lab tests that his liver function was "grossly abnormal"
and that he should not be exposed to liver toxic chemicals or
alcohol. Dr. Bailey's findings and conclusions were recorded
in Chevron's records.

Some years later, on December 28, 1995, Chevron offered
Mr. Echazabal a job in its El Segundo refinery, but the offer
was contingent on the results of a standard pre-employment
physical examination. Enter Dr. Kenneth McGill, Dr. Bailey's
successor. As had Dr. Bailey, Dr. McGill worked at the refinery
clinic and was familiar with the conditions and demands
of the work at issue. On the basis of a thorough medical
examination and a review of blood tests, Dr. McGill determined
that the chemicals and solvents to which Mr. Echazabal
would be exposed at the refinery would further damage his
reduced liver capacity and seriously endanger his health and
his life. About this concern, Dr. McGill consulted by telephone
with Mr. Echazabal's personal treating physician, Dr.
Zelman Weingarten. Dr. Weingarten reported to Dr. McGill
that extended Interferon therapy had not cleared his patient's
condition, and that exposure to hepatotoxic hydrocarbons was
not recommended. Then, Dr. McGill discussed his findings
and conclusions with Dr. T. L. Bridge, Chevron's Medical
Director in San Francisco. Dr. Bridge agreed with Dr.
McGill's and Dr. Bailey's assessments that Mr. Echazabal
could not safely work as a plant helper in the coker unit at the
refinery. Not a single doctor disagreed with this conclusion.
Mr. Echazabal did not offer any evidence or information to
the contrary. Accordingly, and because Mr. Echazabal did not
pass the required physical examination for the job, the offer
of employment was withdrawn.

Dr. Brian Tang, a separate medical specialist in occupational
medicine subsequently hired by his immediate
employer Irwin Industries, also came to the conclusion that
Mr. Echazabal has a condition that will be "worsened by . . .
exposure [to hepatotoxins], causing probable death." Eight
laboratory tests support the doctors' reasonable medical judgment
and Chevron's objective, individualized, and sensible
decision not to give Mr. Echazabal the job. He now brings to
court facially competing information, but this information was
not in Chevron's hands when they made the decision he now
claims is actionable. In fact, the information did not surface
until this lawsuit, rendering it suspect at best. As we held in
Cook v. United States Dept. of Labor, 688 F.2d 669 (9th Cir.
1982), medical evidence that surfaces after the decision has
been made is of no moment in this context regarding the bona
fides of the decision itself. What is at issue here is the manner
in which Chevron made its decision, not whether lawyers
could later find another doctor to say something else.

I agree with the district court that Mr. Echazabal has no
case, and I do so for two primary reasons. First, Mr. Echazabal
simply is not "otherwise qualified" for the work he seeks.
Why? Because the job most probably will endanger his life.
I do not understand how we can claim he can perform the
essential functions of the position he seeks when precisely
because of his disability, those functions may kill him. To
ignore this reality is bizarre. The EEOC's relevant regulation
provides that "the term `qualification standard' may include
a requirement that an individual shall not pose a direct threat
to the health or safety of the individual or others in the workplace."
29 C.F.R. § 1630.15(b)(2).

Our law books, both state and federal, overflow with statutes
and rules designed by representative governments to protect
workers from harm. Long ago we rejected the idea that
workers toil at their own peril in the workplace."Paternalism"
here is just an abstract out-of-place label of no analytical help.
Whether paternalism or maternalism, the concept is pernicious
when it is allowed to dislodge longstanding laws mandating
workplace safety. That battle was fought and lost long
ago in our legislatures. In many jurisdictions, it is a crime
knowingly to subject workers to life-endangering conditions.
California Labor Code § 6402 expressly forbids an employer
from putting an employee in harms way. In Arizona, an
employer who fails to provide a safe workplace commits a
felony. Ariz. Rev. Stats. Annot., Labor § 24-403, § 23-418. In
effect, we repeal these laws with respect to this appellant, and
to other workers in similar situations. So much for OSHA.
Now, our laws give less protection to workers known to be in
danger than they afford to those who are not. That seems
upside down and backwards. Precisely the workers who need
protection can sue because they receive what they need.

Second, Chevron has a defense to this action, known as the
"direct threat" defense. 42 U.S.C. § 12113(b). The EEOC's
implementing regulations, authorized by Congress, defines a
"direct threat" to mean "a significant risk of substantial harm
to the health or safety of the individual or others that cannot
be reduced by reasonable accommodation . . . ." 29 C.F.R.
§ 1630.2(r) (Emphasis added). The EEOC's own Technical
Assistance Manual on the employment provisions of the ADA
states: "The ADA recognizes legitimate employer concerns
and the requirements of other laws for health and safety in the
workplace. An employer is not required to hire or retain an
individual who would pose a `direct threat' to health or safety."
EEOC, Technical Assistance Manual on the Employment
Provisions (Title I) of the Americans with Disabilities Act
§ 4.4 (1992).

On these issues, the EEOC has rationally and humanely
spoken. Under Chevron U.S.A., Natural Resources Defense,
467 U.S. 837, 844-45 (1984), we owe deference to the
EEOC's interpretation of the Act, but we have failed to
acknowledge this responsibility. Contrary to what some might
believe, we do not know more about this subject than the
EEOC. Following the EEOC's guidance, Mr. Echazabal is not
qualified for this work.

Chevron correctly points out that the majority's holding
leads to absurd results: a steelworker who develops vertigo
can keep his job constructing high rise buildings; a power saw
operator with narcolepsy or epilepsy must be allowed to operate
his saw; and a person allergic to bees is entitled to be hired
as a beekeeper. The possible examples of this Pickwickian
ruling are endless. I doubt that Congress intended such a
result when it enacted laws to protect persons with disabilities.
The ADA provides a defense to employers who can demonstrate
that an accommodation constitutes an "undue hardship."
42 U.S.C. § 12112(b)(5)(A). I believe it would be an
undue hardship to require an employer to place an employee
in a life-threatening situation. Such a rule would require
employers knowingly to endanger workers. The legal peril
involved is obvious, and a simple human to human matter,
such a moral burden is unconscionable.

The idea that conflicting responsibilities under different
labor laws will be solved down the long, expensive, and
unpredictable litigation road by the doctrine of implied preemption
seems highly pernicious in this context, and a thin
reed at best. Did Congress really intend to nullify state and
federal workplace safety laws and render them impotent to
protect workers in identifiable harms way? I doubt it. Does
anti-paternalism trump basic safety concerns? This entire construct
makes a house of cards look secure.

Finally, and fortunately, we have created a conflict with the
Eleventh Circuit, which held that "an 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 (11th Cir. 1996), cert. denied,
117 S. Ct. 964 (1997). I say "fortunately" because this conflict
will compel the Supreme Court -- or Congress -- to
resolve this dispute -- unless we do so ourselves by way of
en banc review.

[1] The district court also certified for appeal three other claims by
Echazabal on which it granted summary judgment for Chevron: a Rehabilitation
Act claim, a claim under California's Fair Employment and Housing
Act, and a claim that Chevron intentionally interfered with
Echazabal's employment contract with the contractor for whom he
worked. As we discuss below, see infra note 13, in this opinion we vacate
the district court's grant of summary judgment as to the first two of these
claims. In a separate memorandum disposition filed concurrently herewith,
we also reverse the district court's grant of summary judgment with
respect to the intentional interference with contract claim.

[2] The defenses section of Title I of the ADA reads in relevant part:

(a) In general

It may be a defense to a charge of discrimination under this chapter
that an alleged application of qualification standards, tests, or
selection criteria that screen out or tend to screen out or otherwise
deny a job or benefit to an individual with a disability has been
shown to be job-related and consistent with business necessity,
and such performance cannot be accomplished by reasonable
accommodation, as required under this subchapter.
(b) Qualification standards

The term "qualification standards" may include a requirement
that an individual shall not pose a direct threat to the health or
safety of other individuals in the workplace.

. . . .

42 U.S.C. § 12113. The subsection that sets forth the "direct threat" language
does not explicitly set forth an affirmative defense to a claim of disability
discrimination. Nevertheless, it is clear that Congress intended the
provision to define the terms of such defense.

[3] We asked the parties and the amicus EEOC to be prepared to discuss,
at oral argument, whether the direct threat defense includes threats to one-self. Following argument, we invited the parties and the EEOC to submit
briefs on the question. While the parties submitted such briefs, the EEOC
advised us that it did not wish to do so.

[4] A district court in the Seventh Circuit has examined the question in
detail. It concluded, as do we, that the direct threat defense does not apply
to threats to oneself. See Kohnke v. Delta Airlines, Inc., 932 F. Supp. 1110
(N.D. Ill. 1996).

[5] It is true that, in the Eleventh Amendment context, the Supreme Court
has rejected a similar textual argument. Although the Eleventh Amendment
specifies only that "citizens of another state" may not sue a state, the
Court has held that states are immune from suit by citizens of the same
state. See Seminole Tribe of Florida v. Florida , 517 U.S. 44, 54 (1996); Hans v. Louisiana, 134 U.S. 1 (1890). But see Pennsylvania v. Union Gas
Co., 491 U.S. 1 (1989); U.S. Const. amend. XI. Regardless of the merits
of the Court's interpretation of the Eleventh Amendment, we decline to
follow a similar approach here or to adopt so atextual a reading of the
direct threat defense. Rather, we prefer to afford the statute its plain meaning.

[6] We found but one discussion in the legislative history that could be
read as contrary to the plain reading of the direct threat defense. The report of the House Committee on Education and Labor contains the following
somewhat ambiguous passage:

A candidate, undergoing a post-offer, pre-employment medical
examination may not be excluded, for example, solely on the
basis of an abnormality on an x-ray. However, if the examining
physician found that there was high probability of substantial
harm if the candidate performed the particular functions of the
job in question, the employer could reject the candidate . . .

H.R. Rep. No. 101-485, pt. 2, at 73-74, reprinted in 1990 U.S.C.C.A.N.
303, 355-56. The quoted language does not make it clear to whom such
"substantial harm" might occur. In any event, this general discussion does
not take place in the context of discussing the direct threat defense. When
the House Committee report does discuss the direct threat defense specifically,
it, like the other reports, states that the defense codifies the standard
set forth by the Supreme Court in Arline. In the end, the evidence provided
by this isolated passage is vastly outweighed by the substantial evidence
to the contrary that appears throughout the legislative history.

[7] While we invited the EEOC, as amicus, to file a brief commenting on
the validity of its regulatory interpretation, it declined to do so. See supra
note 3.

[8] While we need not decide what level of deference the regulations
implementing Title I are due, we note that Congress explicitly required the
EEOC to issue regulations implementing Title I. See 42 U.S.C. § 12116
("Not later than 1 year after July 26, 1990, the Commission shall issue
regulations in an accessible format to carry out this subchapter [Title I]
. . . ." ). Chevron sets forth the level of deference that "should be accorded
to an executive department's construction of a statutory scheme it is
entrusted to administer." Chevron, 467 U.S. at 844. In fact, with respect
to Title II of the ADA, we have held that Chevron governs review of regulations
promulgated by the Attorney General because"Congress required
the Attorney General to promulgate regulations implementing Title II."
Zimmerman v. Oregon Dep't of Justice, 170 F.3d 1169, 1172-73 (9th Cir.
1999); see also Dare v. California, 191 F.3d 1167, 1172 (9th Cir. 1999); Does 1-5 v. Chandler, 83 F.3d 1150, 1153 (9th Cir. 1996).
The regulations implementing Title I of the ADA present a different
deference question than that confronted by the Supreme Court in its recent
ADA decisions. In Sutton and Kirkingburg , the Supreme Court reserved
the question whether, and to what extent, the regulations and interpretive
guidance "promulgated by the EEOC relating to the ADA's definitional
section, 42 U.S.C. § 12102," are entitled to deference. Albertsons, Inc. v.
Kirkingburg, 119 S. Ct. 2162, 2167 n.10 (1999); see also Sutton v. United
Airlines, Inc., 119 S. Ct. 2139, 2151 (1999); Broussard v. University of
Cal., at Berkley, 192 F.3d 1252, 1256 n.2 (9th Cir. 1999) (reserving same
question). As the Supreme Court specifically noted, however, "[n]o
agency . . . has been given authority to issue regulations implementing the
generally applicable provisions of the ADA, see§§ 12101-12102, which
fall outside Titles I-V." Sutton, 119 S. Ct. at 2145. Unlike the generally
applicable provisions considered in Kirkingburg and Sutton, Title I contains
an explicit grant of regulatory authority to the EEOC.

[9] Chevron's argument is markedly similar to the argument made by the
dissent in Johnson Controls regarding the word "occupation" in the term
"bona fide occupational qualification," as used in Title VII of the Civil
Rights Act. See Johnson Controls, 499 U.S. at 211 n.1 (White, J., concurring);
id. at 201. In Johnson Controls , the majority rejected the dissent's
interpretation, see id. at 201, 203-04, and described the fallacy of the argument
as follows: "It is word play to say that`the job' at Johnson [Controls]
is to make batteries without risk to fetuses in the same way `the job' at
Western airlines is to fly planes without crashing. " Johnson Controls, 499
U.S. at 207 (quoting Johnson Controls, 886 F.2d 871, 913 (7th Cir. 1989)
(Easterbrook, J., dissenting)).

[10] Chevron argues that, in spite of the fact that it would undermine the
clear language of the ADA's direct threat provision, we should conclude
that a personal safety requirement is a valid qualification standard because
such a conclusion is supported by case law implementing the Rehabilitation
Act. It is true that at least one Ninth Circuit Rehabilitation Act case
appears to conclude that a disabled individual is not a "qualified handicapped
person" if her employment would pose "a reasonable probability
of substantial harm" to her. Mantolete v. Bolger, 767 F.2d 1416, 1422-24
(9th Cir. 1985) (stating that a risk to self may prevent an individual from
being "qualified," but holding that the district court applied a standard too
lenient when it found that, because the individual's employment would
pose "an elevated risk of injury," she was not a qualified handicapped person).
But cf. Bentivegna v. United States Dep't of Labor, 694 F.2d 619,
622-23 & n.3 (9th Cir. 1982) (questioning, under the Rehabilitation Act,
whether a risk of future injury to self would be"related to the performance
of the job and . . . consistent with business necessity," but declining to
"hold that a non-imminent risk of injury cannot justify rejecting a handicapped
individual"). Mantolete does not affect our analysis, however, because it relies on a
Rehabilitation Act regulation that is irrelevant to our inquiry. The Mantolete
court relied on a Rehabilitation Act regulation that defined a "quali- fied handicapped person" as an individual who, among other things, is
able to "perform the essential functions of the position in question without endangering the health and safety of the individual or others." 29 C.F.R.
§ 1613.702(f) (emphasis added); see also Mantolete, 767 F.2d at 1421.
The Rehabilitation Act did not provide a statutory definition of the term
"qualified handicapped person." Thus, the court deemed the regulations
controlling. In contrast to the Rehabilitation Act, the ADA contains a statutory
definition of the term "qualified individual with a disability," which
is the ADA's equivalent of the Rehabilitation Act's"qualified handicapped
person." See 42 U.S.C. § 12111(8). The statutory definition in the
ADA does not mention threats to the health or safety of the individual or
others. Rather, it requires only that the individual be able, with or without
reasonable accommodation, to "perform the essential functions of the
employment position that such individual holds or desires." 42 U.S.C.
§ 12111(8). Obviously, the ADA's statutory definition of the term "qualified
individual with a disability" supercedes the Rehabilitation Act's regulatory
definition of the analogous term.

[11] In the context of threats to others, as opposed to threats to self, a few
circuits have addressed employer claims that a threat that an individual
posed to others prevented that person from performing the essential functions
of the job at issue. See EEOC v. Amego, Inc., 110 F.3d 135, 142-44
(1st Cir. 1997); EEOC v. Exxon Corp., 203 F.3d 871, 873-75 (5th Cir.
2000). Because these decisions deal with threats to others, they are irrelevant
to our analysis.

[12] As noted above, the district court also certified for appeal its grant of
summary judgment in favor of Chevron on the Rehabilitation Act and
FEHA claims. In granting Chevron summary judgment with respect to
those claims, however, the district court treated the substantive standards
for liability under all three statutes as identical. We note that this conclusion
may well be correct with respect to the Rehabilitation Act. In 1992,
Congress amended the relevant provision of the Rehabilitation Act -- section
504 -- by adding the following subsection:

The standards used to determine whether this section has been
violated in a complaint alleging employment discrimination
under this section shall be the standards applied under title I of
the Americans with Disabilities Act of 1990 (42 U.S.C. 12111 et
seq.) and the provisions of sections 501 through 504, and 510, of
the Americans with Disabilities Act of 1990 (42 U.S.C. 12201-
12204 and 12210), as such sections relate to employment.

Rehabilitation Act Amendments of 1992, Pub. L. No. 102-569, § 506, 106
Stat. 4344, 4428 (amendments codified at 29 U.S.C.§ 794(d)). Thus, our
reversal as to the ADA claim may well require reversal with respect to the Rehabilitation Act claim. Nevertheless, we leave it to the district court to
determine initially whether summary judgment should be granted to Chevron
as to the Rehabilitation Act and FEHA claims. Accordingly, we vacate
the district court's grant of summary judgment with respect to those
claims, and remand for reconsideration in light of our decision. In addition,
because we reverse the district court's grant of summary judgment
as to the ADA claim and vacate its grant of summary judgment as to the
Rehabilitation Act and FEHA claims, we also reverse the district court's
judgment that Echazabal's claim for punitive damages is moot.