Privacy, Business and Law

The Ninth Circuit, in resolving a case of first impression, stated that employers are not entitled to invoke the direct threat defense under the ADA if employees pose a direct threat to their own health or safety but not to the health or safety of others in the workplace. Echazabal v. Chevron USA, Inc. (9th Cir. May 23, 2000).

Mario Echazabal worked at Chevron’s oil refinery for numerous contractors. He applied to work directly for Chevron and was offered employment if he passed a physical examination. The examination revealed that his liver was releasing higher than normal enzymes. Because Chevron believed his liver condition would worsen if exposed to the chemicals present at the refinery, it rescinded the job offer. However, Echazabal was allowed to continue in his position at the refinery with the current contractor. His doctors eventually diagnosed him with hepatitis C, but never recommended that he stop working at the refinery. Echazabal again applied for, and was offered, a job with Chevron. The physical examination once again revealed the enzyme activity. This time, not only did Chevron rescind the offer out of concern for Echazabal’s safety, it required the contractor to remove him from the refinery and place him in a position without exposure to chemicals.

Echazabal sued Chevron and the contractor for discrimination in violation of the ADA. The trial court granted judgment in Chevron’s favor. On appeal, Chevron argued that its decision not to hire Echazabal was based on the ground that he posed a direct threat to his own health, an affirmative defense to the charge of discrimination.

The ADA allows an employer to establish a requirement that an individual shall not pose a direct threat to the health or safety of other individuals in the workplace. Thus, the Ninth Circuit stated that the plain language of the statute does not include direct threats to the health or safety of the disabled individual himself. While the Ninth Circuit stated that the plain language of the statute was determinative, it also pointed out that the legislative history of the ADA supported the same conclusion that all individuals (should be allowed) to decide for themselves whether to put their own health and safety at risk.

Chevron also argued that the regulations promulgated by the EEOC allowed for the direct threat defense even if the employee poses a threat only to his own health. But, although it is rare for a court to take a position more favorable to the employee than the EEOC, the Ninth Circuit refused to defer to the EEOC’s interpretation because it found the intent of Congress clear.
A few years ago, the Supreme Court held that a paternalistic attitude toward women which kept them out of hazardous jobs would not be permitted. This case goes a step further, reminding employers that they must take care of the workplace; the employees can take care of themselves.