Ninth Circuit upbraids Chevron for `paternalistic' decision in worker's ADA case.

Taking a swipe at so-called paternalistic employment policies, the Ninth Circuit has held that disabled job applicants must be given the opportunity to decide what work-related health or safety risks they will accept. The court refused to allow employers to make that unilateral decision by refusing to hire people with disabilities.

Ruling in a case of first impression in Echazabal v. Chevron USA, Inc., Judge Stephen Reinhardt wrote, "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." (No. 98-55551, 2000 WL 669137 (9th Cir. May 23, 2000).)

At issue in the case was the ADA's "direct threat" provision, which allows 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." Reinhardt held that because the provision does not include "threats to oneself," employers cannot exclude a disabled employee or candidate who is otherwise qualified to perform a specific job.

Gary Phelan, a New Haven, Connecticut, attorney who handles ADA cases, characterized the Ninth Circuit opinion as "one of the most important ADA decisions during the years that the statute has been in effect."

Phelan said, "It's paternalistic to, in essence, be saying, `We know what's best for you,' yet simultaneously allowing nondisabled people to take risks every day. People with disabilities should be able to take those same risks. It's only when there is a risk to others that I think that the `direct threat' defense is triggered."

The case emerged following Chevron's decision not to hire Mario Echazabal at the company's El Segundo, California, oil refinery. Echazabal had been working at the plant as a contractor for nearly 25 years, but the company twice rescinded offers it made to Echazabal to bring him on as a full-time employee on Chevron's payroll. The rescissions were based on the results of his pre-employment physical examinations, which revealed a liver problem associated with asymptomatic chronic active hepatitis C. The company stated that Echazabal faced a risk of liver damage if he worked at the plant's coker unit, where he would be exposed to various solvents and chemicals.

Chevron wrote a letter to Irwin Industries, Inc., the contractor that employed Echazabal, asking it to "immediately remove" him from the refinery or place him in a position that would eliminate his exposure to solvents and chemicals. Irwin complied with Chevron's wishes, and Echazabal was no longer permitted to work at the refinery on anyone's payroll.

He filed suit against Chevron and Irwin, alleging discrimination under the ADA. A federal trial court granted Chevron's motion for summary judgment, and Echazabal appealed.

The unanimous three-judge panel rejected each of Chevron's arguments in favor of applying the ADA's affirmative "direct threat" defense to individuals whose own health or safety may be threatened by workplace conditions.

First, the court held that, even though the Equal Employment Opportunity Commission's own implementing regulations state that the defense applies to "threats to oneself," Congress's intent regarding the issue was so clear that no deference to the agency's interpretation was required.

Second, the court tossed aside Chevron's argument that 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," Reinhardt wrote. He noted that the U.S. Supreme Court, in United Auto Workers v. Johnson Controls, Inc., "strongly suggested that state tort law would be preempted to the extent that it interfered with federal antidiscrimination law." (499 U.S. 187 (1991).)

Remanding the case to the federal trial court, Reinhardt wrote 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."