Ninth Circuit Court of Appeals Narrowly Construes ADA's "Direct Threat" Defense
Many employers, especially those in safety-sensitive industries, express concern that hiring applicants with certain disabilities could pose hazards in the workplace. The Americans with Disabilities Act (the "ADA"), which generally prohibits discrimination against applicants and employees because of their disabilities, addresses this concern by providing for an affirmative defense, which 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". 42 U.S.C. § 12113. The United States Court of Appeals for the Ninth Circuit, in San Francisco, recently gave a narrow interpretation to this provision, ruling that the "direct threat" defense available to employers does not apply to employees or job applicants who pose a threat solely to their own health or safety, and not that of others in the workplace. Echazabal v. Chevron USA, Inc., No. 98-55551, 2000 WL 669137 (9th Cir. May 23, 2000).
For more than twenty years, Echazabal worked for a maintenance contractor in the coker unit at a Chevron oil refinery, where he was exposed to various solvents and chemicals. Twice, he applied for employment directly with Chevron, and twice, he was offered the position contingent on his satisfactory completion of a pre-employment physical examination. On both occasions, Echazabal's physical examination revealed that his liver was releasing elevated levels of certain enzymes; Chevron revoked both conditional offers of employment after it concluded that his liver might be damaged by continued exposure to the solvents and chemicals present in the coker unit. Although Echazabal was ultimately diagnosed with hepatitis C, his physicians did not recommend that he stop working in the coker unit.
After revoking its second conditional offer of employment, Chevron requested that the maintenance contractor remove Echazabal from the coker unit; he lost his job as a result, and sued both the contractor and Chevron for disability discrimination under the ADA. In response, Chevron claimed that its actions were justified under the "direct threat" affirmative defense, because continuing employment at the refinery would pose a direct threat to Echazabal's health. The district court agreed, and granted summary judgment to Chevron.
The Court of Appeals reversed the district court's decision. The Court concluded that the "direct threat" affirmative defense does not apply where the employment at issue poses a direct threat only to the employee or job applicant's own health or safety, and not that of other employees.
The Court also rejected Chevron's alternative arguments. In order to invoke the protection of the ADA, an employee or applicant must be able to establish that, apart from his or her disability, he or she is "otherwise qualified" for the position in question. Based on the job description for the position Echazabal sought, which indicated that successful applicants for that position must be able to tolerate a work environment including solvents and chemicals, Chevron also argued that Echazabal was not "otherwise qualified" for the position he sought due to the risk of damage to his liver. The Court made short shrift of this argument, explaining, "[w]e do not agree 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.…While we give consideration to an employer's judgment as to what functions of a job are essential … 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." Id. at *6.
Two things are clear from the Echazabal decision. First, at least in the Ninth Circuit (which encompasses California and several other western states), employers may not discriminate against a disabled employee or job applicant based on a direct threat to the health or safety of that individual alone; it remains to be seen whether federal courts elsewhere in the country will adopt a similarly restrictive interpretation of the "direct threat" defense. Second, the Ninth Circuit does not accept the notion that performing one's job without risk to one's own health or safety is an essential function of the job. In other words, if an individual can perform the tasks associated with a given job, he may not be precluded from doing so simply because he may become ill or injured as a result of doing so.
Update: On June 10, 2002, the Supreme Court reversed the Ninth Circuit's decision. See Supreme Court Upholds "Direct Threat to Self" Defense to ADA Claims (June 2002).