**IN THE UNITED STATES DISTRICT COURT**

**FOR THE WESTERN DISTRICT OF TENNESSEE**

**EASTERN DIVISION**

**\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_**

**)**

**JOE HOUSE, )**

**) Civil Action No. 1:99-1306**

**Plaintiff, )**

**)**

**v. ) Judge Todd**

**)**

**CITY OF JACKSON and the )**

**JACKSON POLICE DEPARTMENT, )**

**)**

**Defendants. )**

**\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_)**

**UNITED STATES' BRIEF AS *AMICUS CURIAE***

**IN RESPONSE TO DEFENDANTS' MOTION FOR SUMMARY JUDGMENT**

BILL LANN LEE

Assistant Attorney General

Civil Rights Division

JOHN L. WODATCH, Chief

RENEE M. WOHLENHAUS, Deputy Chief

PHILIP L. BREEN, Special Legal Counsel

M. CHRISTINE FOTOPULOS, Attorney

Disability Rights Section

Civil Rights Division

U.S. Department of Justice

P.O. Box 66738

Washington, D.C. 20035-6738

\(202\) 305-7475

**TABLE OF CONTENTS**

**TABLE OF AUTHORITIES iii**

**BACKGROUND 1**

**STATUTORY AND REGULATORY BACKGROUND 3**

**ARGUMENT 6**

> **I. STATUTORY PROVISIONS MANDATING THE BLANKET EXCLUSION FROM
> EMPLOYMENT OF ALL PERSONS WITH ANY "APPARENT MENTAL DISORDER" LISTED
> IN THE DSM ARE FACIALLY INVALID UNDER THE ADA 6**
>
> **A. THE BLANKET EXCLUSION IS NOT JOB-RELATED AND CONSISTENT WITH
> BUSINESS NECESSITY 7**
>
> **B. THE BLANKET EXCLUSION CANNOT BE JUSTIFIED UNDER THE "DIRECT
> THREAT" PROVISION 13**
>
> **II. STATUTORY PROVISIONS MANDATING THIS BLANKET EXCLUSION ARE
> PREEMPTED BY THE ADA AND HAVE NO LEGAL FORCE OR EFFECT 19**
>
> **A. EMPLOYERS MAY NOT RELY UPON THE STATUTORY PROVISIONS AS A DEFENSE
> TO A CLAIM OF UNLAWFUL DISCRIMINATION UNDER THE ADA 23**
>
> **B. EMPLOYERS MAY BE HELD FULLY LIABLE FOR THEIR VIOLATIONS OF THE
> ADA NOTWITHSTANDING THE STATUTORY PROVISIONS 26**

**CONCLUSION 27**

**TABLE OF AUTHORITIES**

**CASES**

[Albertson's, Inc. v. Kirkingburg]{.underline}, 527 U.S. 555 (1999) 10,
24

[Andrews v. Ohio]{.underline}, 104 F.3d 803 (6^th^ Cir. 1997) 6, 13

[Bombrys v. City of Toledo]{.underline}, 849 F.Supp. 1210 (N.D. Ohio
1993) 9, 17

[Bragdon v. Abbott]{.underline}, 524 U.S. 624 (1998) 14-15

[Brickers v. Cleveland Board of Education]{.underline}, 145 F.3d 846
(6th Cir. 1998) 25-26

[Chandler v. City of Dallas]{.underline}, 2 F.3d 1385 (5^th^ Cir. 1993)
17

[Coleman v. Casey County Board of Education]{.underline}, 510 F.Supp.
301 (W.D. Ky. 1980) 20

[Daugherty v. City of El Paso]{.underline}, 56 F.3d 695 (5^th^ Cir.
1995) 17

[Davis v. City of Camden]{.underline}, 657 F.Supp. 396 (D.N.J. 1987) 28

[EEOC v. Chrysler Corp.]{.underline}, 917 F.Supp. 1164 (E.D. Mich. 1996)
9, 17

[EEOC v. County of Allegheny]{.underline}, 705 F.2d 679 (3rd Cir. 1983)
21, 27

[EEOC v. Exxon Corp.]{.underline}, 203 F.3d 871 (5th Cir. 2000) 10, 16,
19

[EEOC v. State of Illinois]{.underline}, 69 F.3d 167 (7th Cir. 1995) 20

[Felder v. Casey]{.underline}, 487 U.S. 131 (1988) 21, 22

[Florida Lime & Avocado Growers, Inc. v. Paul]{.underline}, 373 U.S. 132
(1963) 21

[Free v. Bland]{.underline}, 369 U.S. 663 (1962) 22

[Gade v. National Solid Wastes Management Ass'n]{.underline}, 112 S.Ct.
2374 (1992) 20-21

[Garneau v. Raytheon Co.]{.underline}, 323 F.Supp. 391 (D.C. Mass. 1971)
20

[General Electric Co. v. Young]{.underline}, 3 FEP Cases 560 (W.D. Ky.
1971) 20

[Hall v. U.S. Postal Service]{.underline}, 857 F.2d 1073 (6^th^ Cir.
1988) 16

[Hamlin v. Charter Township of Flint]{.underline}, 165 F.3d 426 (6^th^
Cir. 1999) 15-16

[Hammer v. Board of Education]{.underline}, 955 F.Supp. 921 (N.D. Ill.
1997) 9

[Heise v. Genuine Parts Co.]{.underline}, 900 F.Supp. 1137 (D. Minn.
1995) 9

[Hendricks-Robinson v. Excel Corp.]{.underline}, 154 F.3d 685 (7^th^
Cir. 1998) 11

[Hines v. Davidowitz]{.underline}, 312 U.S. 52 (1941) 21

[Holiday v. City of Chattanooga]{.underline}, 206 F.3d 637 (6th Cir.
2000) 17-20

[Homemakers, Inc., L.A. v. Div. of Industrial Welfare]{.underline}, 356
F.Supp. 111 (N.D. Cal. 1973) 20

[Hutchinson v. United Parcel Service]{.underline}, 883 F.Supp. 379 (N.D.
Iowa 1995) 9

[Int'l Union, United Auto Workers v. Johnson Controls,
Inc.]{.underline}, 499 U.S. 187 (1991) 26

[Jones v. Rath Packing Co.]{.underline}, 430 U.S. 519 (1977) 20

[Kapche v. City of San Antonio]{.underline}, 176 F.3d 840, 844 (5^th^
Cir. 1999) 17

[Kober v. Westinghouse Elect. Corp.]{.underline}, 480 F.2d 240 (3rd Cir.
1973) 27-28

[Kreitner v. Bendix Corp.]{.underline}, 501 F.Supp. 415 (W.D. Mich.
1980) 20

[Krocka v. Bransfield]{.underline}, 969 F.Supp. 1073 (N.D. Ill. 1997) 9,
17

[Local 246, Utility Wkr's Union v. So. Cal. Ed. Co.]{.underline}, 320
F.Supp. 1262 (D.C. Cal. 1970) 20-21

[Oconomowoc Res. Prog., Inc. v. City of Greenfield]{.underline}, 23
F.Supp.2d 941 (E.D. Wis. 1998) 20

[Perez v. Campbell]{.underline}, 402 U.S. 637 (1971) 21

[Prewitt v. United States Postal Service]{.underline}, 662 F.2d 292
(5^th^ Cir. 1981) 12

[Quinones v. City of Evanston]{.underline}, 58 F.3d 275 (7th Cir. 1995)
27

[Quinones v. City of Evanston]{.underline}, 829 F.Supp. 237 (N.D. Ill.
1993) 27

[Rizzo v. Children's World Learning Centers, Inc.]{.underline}, 84 F.3d
758 (5^th^ Cir. 1996) ("[Rizzo I]{.underline}") 16

[Rizzo v. Children's World Learning Centers, Inc.]{.underline}, 173 F.3d
254 (5^th^ Cir. 1999) ("[Rizzo II]{.underline}") 19

[Rizzo v. Children's World Learning Centers, Inc.]{.underline}, 213 F.3d
209 (5^th^ Cir. 2000) ("[Rizzo III]{.underline}") 19

[Rosenfield v. Southern Pacific Co.]{.underline}, 444 F.2d 1219 (9^th^
Cir. 1971) 27

[Sarsycki v. United Parcel Service, Inc.]{.underline}, 862 F.Supp. 336
(W.D. Okl. 1994) 9, 17

[School Board of Nassau County v. Arline]{.underline}, 480 U.S. 273
(1987) 14-15

[Spirt v. Teachers Insurance and Annuity Ass'n]{.underline}, 691 F.2d
1054 (2^nd^ Cir. 1982) 20

[Stillwell v. Kansas City Bd. of Police Comm.]{.underline}, 872 F.Supp.
682 (W.D. Mo. 1995) 8-9, 17

[T.E.P. v. Leavit]{.underline}, 2 A.D. Cases (BNA) 1299 (D. Utah 1993)
20

[Taylor v. General Motors Corp.]{.underline}, 875 F.2d 816 (11th Cir.
1989) 21-22

[Vogel v. Trans World Airlines]{.underline}, 346 F.Supp. 805 (W.D. Miss.
1970) 20

[Williams v. General Foods]{.underline}, 492 F.2d 399 (7th Cir. 1974) 27

**FEDERAL STATUTES, REGULATIONS AND INTERPRETIVE GUIDANCE**

Americans with Disabilities Act (ADA), 42 U.S.C. §§12101, *et seq.*
passim

EEOC Title I Regulations and Interpretive Appendix (29 C.F.R. part 1630)
passim

EEOC's Technical Assistance Manual on Title I of the ADA passim

**LEGISLATIVE HISTORY**

H.R. Rep. No. 485 part 2, 101^st^ Cong., 2d Sess (1990) (Labor Report)
passim

H.R. Rep. No. 485 part 3, 101^st^ Cong., 2d Sess. (1990) (Judiciary
Report) passim

S. Rep. No. 116, 101^st^ Cong., 1^st^ Sess. (1989) (Senate Report)
passim

H. Conf. Rep. No. 101-596, 101st Cong., 2d Sess. (1990), 1990
U.S.C.C.A.N. 593. 23

**STATE STATUTES**

Tenn. Code Ann. §38-8-106 passim

Tenn. Code Ann. §38-8-104 2

Tenn. Code Ann. §37-5-117 1

Tenn. Code Ann. §41-1-116 1

Tenn. Code Ann. §7-86-201 1, 2, 3

Tenn. Code Ann. §8-8-102 1

**MISCELLANEOUS**

[Diagnostic and Statistical Manual of Mental Disorders]{.underline},
Fourth Edition ("[DSM-IV]{.underline}") American Psychiatric Association
(Washington, D.C. 1994) passim

**BACKGROUND**

The State of Tennessee has enacted five state statutes which mandate
various minimum qualification standards for all persons employed or
seeking employment in any of five different law enforcement positions in
the state: "police officer" (Tenn. Code Ann. §38-8-106); "sheriff"
(Tenn. Code Ann. §8-8-102); "correctional officer" (Tenn. Code Ann.
§41-1-116); "youth service officer" (Tenn. Code Ann. §37-5-117); and
"public safety dispatcher" (Tenn. Code Ann. §7-86-201). Among the
numerous standards imposed by each of these statutes is the following
requirement, which is stated in nearly identical language in all five
statutes:

> Persons employed in these positions must "be free of all apparent
> mental disorders as described in the most recent edition of the
> Diagnostic and Statistical Manual of Mental Disorders of the American
> Psychiatric Association," and "must be certified as meeting these
> criteria by a qualified professional in the psychiatric or
> psychological fields."[^1]

By means of this provision, these statutes mandate the automatic
exclusion from employment of all persons who have any mental condition
listed in the DSM, without allowing for an individualized assessment of
whether a particular individual can safely perform the essential
functions of the particular job in question with or without a reasonable
accommodation, and without providing for any exception.[^2]

On November 16, 1999, Plaintiff Joe House, a police officer, brought
this suit against his former employers, Defendants City of Jackson and
the Jackson Police Department, alleging that they unlawfully
discriminated against him on the basis of disability in violation of the
Americans with Disabilities Act (ADA), 42 U.S.C. §§12101, *et seq.*
Among his other claims, Plaintiff alleges that Defendants unlawfully
relied upon Tenn. Code Ann. §38-8-106[^3] when they refused to reassign
him to a desk officer position as a reasonable accommodation of his
disability (post-traumatic stress disorder). [See]{.underline}
Plaintiff's [Complaint]{.underline}, p. 4. Plaintiff alleges that this
statutory provision conflicts with the ADA and is therefore preempted,
and that Defendants are estopped from relying upon it as a defense to a
claim of unlawful discrimination under the ADA. [Id]{.underline}. at
4-5. In addition to other requested relief, Plaintiff prays for
injunctive relief and a declaration that this provision violates the
ADA. [Id]{.underline}. at 6.[^4]

On October 13, 2000, Defendants filed a Motion for Summary Judgment,
arguing, *inter alia*, that Plaintiff, who has been diagnosed with a
"mental disorder" as defined by the statute,

"could not perform duties as a desk officer\...because he was a safety
threat to himself and others." Defendants' [Memorandum of
Law]{.underline}, p. 12. Defendants also argue that "Plaintiff cannot,
as a matter of law, be considered a 'qualified individual with a
disability' \[under the ADA\] since he cannot satisfy the requirements
of Tenn. Code Ann. §38-8-106," and that "\[t\]he ADA does not require an
employer to accommodate a person's disability by ignoring duties imposed
by state or federal statute." [Id]{.underline}., p. 13. Thus, Defendants
have invoked as an affirmative defense the very statutory provision
asserted by both Plaintiff and the United States to be facially invalid
under and preempted by the ADA.[^5]

**STATUTORY AND REGULATORY BACKGROUND**

Title I of the ADA provides that "\[n\]o covered entity shall
discriminate against a qualified individual with a disability because of
the disability of such individual in regard to job application
procedures, the hiring, advancement, or discharge of employees,\...and
other terms, conditions, and privileges of employment." 42 U.S.C.
§12112(a). A "qualified individual with a disability" is "an individual
with a disability who, with or without reasonable accommodation, can
perform the essential functions of the employment position that such
individual holds or desires." 42 U.S.C. §12111(8).[^6]

As used in the ADA, the term "discriminate" specifically includes "using
qualification standards\...that screen out or tend to screen out an
individual with a disability or a class of individuals with
disabilities, unless the standard, test or other selection criteria, as
used by the covered entity, is shown to be job-related for the position
in question and is consistent with business necessity\..." 42 U.S.C.
§12112(b)(6); 29 C.F.R. §1630.10.[^7] The law also prohibits subjecting
applicants and employees to medical or psychological examinations except
as specifically permitted, and using the results of any such testing in
any manner that is inconsistent with the requirements of the ADA. 42
U.S.C. §12112(d); 29 C.F.R. §1630.14(c). In particular, "if certain
criteria are used to screen out an employee or employees with
disabilities as a result of such examination or inquiry, the
exclusionary criteria must be job-related and consistent with business
necessity, and performance of the essential job functions \[must not be
capable of being\] accomplished with reasonable accommodation." 29
C.F.R. §1630.14(b)(3).[^8]

The ADA provides two defenses to employers who use employment
qualification standards:

> \(a\) 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. In addition, the EEOC's interpretive guidance to its
Title I regulations regarding these defenses provides that:

> With regard to safety requirements that screen out or tend to screen
> out an individual with a disability or a class of individuals with
> disabilities, an employer must demonstrate that the requirement, as
> applied to the individual, satisfies the "direct threat" standard in
> §1630.2(r) in order to show that the requirement is job-related and
> consistent with business necessity.

29 C.F.R. part 1630, App. §1630.15(b) & (c). The ADA defines "direct
threat" as "a significant risk to the health or safety of others that
cannot be eliminated by reasonable accommodation." 42 U.S.C. §12101(3).
Implementing regulations establish the analysis to be used in
determining whether an applicant or employee poses a direct threat:

> Direct Threat means 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. The determination that an
> individual poses a "direct threat" shall be based on an individualized
> assessment of the individual's present ability to safely perform the
> essential functions of the job. This assessment shall be based on a
> reasonable medical judgment that relies on the most current medical
> knowledge and/or on the best available objective evidence. In
> determining whether an individual would pose a direct threat, the
> factors to be considered include: (1) the nature of the risk; (2) the
> nature and severity of the potential harm; (3) the likelihood that the
> potential harm will occur; and (4) the imminence of the potential
> harm.

29 C.F.R. §1630.2(r). Finally, the EEOC's interpretive guidance for the
"direct threat" provision provides that:

> \[a\]n employer\...is not permitted to deny an employment opportunity
> to an individual with a disability merely because of a slightly
> increased risk. The risk can only be considered when it poses a
> significant risk, [i.e.]{.underline}, high probability, of substantial
> harm; a speculative or remote risk is insufficient\...Determining
> whether an individual poses a significant risk of substantial harm to
> others must be made on a case-by-case basis. The employer should
> identify the specific risk posed by the individual. For individuals
> with mental or emotional disabilities, the employer must identify the
> specific behavior on the part of the individual that would pose the
> direct threat\...\[C\]onsideration \[of the relevant factors\] must
> rely on objective, factual evidence -- not on subjective perceptions,
> irrational fears, patronizing attitudes, or stereotypes -- about the
> nature or effect of a particular disability, or of disability
> generally.

29 C.F.R. part 1630, App. §1630.2(r) (citations omitted).

**ARGUMENT**

**I. Statutory Provisions Mandating the Blanket Exclusion From
Employment of All Persons With Any "Apparent Mental Disorder" Listed in
the DSM Are Facially Invalid Under the ADA**

To be lawful under the ADA, any employment qualification standard that
screens out individuals with disabilities must be "job-related and
consistent with business necessity." 42 U.S.C. §12112(b)(6).[^9] In most
cases, this means that the standard must directly relate to the ability
of an individual to perform the essential functions of the specific job
to which the standard is being applied. However, if the qualification
standard does not meet this test and is instead imposed for the purpose
of excluding individuals who are thought to pose a threat to public
health or safety, then the standard must be justified under the "direct
threat" provision of the ADA. [See]{.underline} 29 C.F.R. part 1630,
App. §1630.15(b) & (c).

There is no question that the qualification standard at issue in this
case screens out individuals with mental disabilities from employment as
police officers[^10], because it constitutes a blanket exclusion of all
individuals with [any]{.underline} mental disorder listed in the DSM,
including many conditions that would qualify as "disabilities" under the
ADA but do not necessarily impact a person's ability to perform the
essential functions of the job with or without a reasonable
accommodation. There is also no question that the standard is imposed
for the specific purpose of excluding certain individuals from
employment as police officers because it is presumed that they will pose
a threat to public health or safety. Therefore, the validity of this
qualification standard under the ADA depends on (a) whether it is
job-related and consistent with business necessity, and (b) whether the
entire class of individuals excluded by the standard necessarily pose a
"direct threat." The United States submits that the blanket exclusion of
all persons with [any]{.underline} mental disorder listed in the DSM can
never meet these requirements, and thus the standard is facially invalid
under the ADA.

**A. The Blanket Exclusion Is Not Job-Related and Consistent with
Business Necessity**

The employment qualification standard at issue in this case
categorically excludes an entire class of individuals on the basis of
disability -- every person with any "apparent mental disorder."
[See]{.underline} Tenn. Code Ann. §38-8-106(9). With respect to such
"\[qualification\] standards that may exclude an entire class of
individuals with disabilities," the EEOC has stated that

> "Blanket" exclusions of this kind usually have been established
> because employers believed them to be necessary for health or safety
> reasons\...Employers who have such standards should review them
> carefully. [In most cases, they will not meet ADA
> requirements\[,\...since g\]eneralized "blanket" exclusions of an
> entire group of people with a certain disability prevent \[the\]
> individual consideration \[required by the ADA\]]{.underline}.

EEOC's Technical Assistance Manual on Title I of the ADA at §4.4
(emphasis added).[^11] This interpretation is based upon and fully
consistent with the ADA's legislative history, which makes clear that it
is individualized assessment, and not blanket exclusions, that must be
employed to determine whether an individual is qualified for employment
in any given position:

> \[The ADA\] [prohibits]{.underline} the use of a blanket rule
> excluding people with certain disabilities except in the very limited
> situation where in all cases \[a\] physical \[or mental\] condition by
> its very nature would prevent the person with a disability from
> performing the essential functions of the job, even with reasonable
> accommodation.

S. Rep. No. 116, 101^st^ Cong., 1^st^ Sess. 27 (1989) (Senate Report)
(emphasis added).

Consistent with Congress' intent as expressed in the ADA, courts have
struck down disability-based blanket exclusions such as the
qualification standard at issue in this case, both in and out of the
employment context. For example, in [Stillwell v. Kansas City, Missouri
Board of Police Commissioners]{.underline}, 872 F.Supp. 682 (W.D. Mo.
1995), the court held that a local licensing authority's policy to deny
armed security guard licenses to people with one hand violated the ADA
because it did not consider an individual's actual abilities to perform
the essential functions of the job of a security guard and instead
relied on stereotypical assumptions that a person with one hand could
not safely perform such functions. Similarly, courts have invalidated
blanket exclusions in a numerous cases involving insulin-dependent
diabetics, finding that "\[t\]he \[ADA\] makes it clear that blanket
exclusions are to be given the utmost scrutiny." [Bombrys v. City of
Toledo]{.underline}, 849 F.Supp. 1210, 1220 (N.D. Ohio 1993).
[See]{.underline}, [e.g.]{.underline}, [EEOC v. Chrysler
Corp.]{.underline}, 917 F.Supp. 1164 (E.D. Mich. 1996), [rev'd on other
grounds]{.underline}, 172 F.3d 48 (6th Cir. 1998); [Sarsycki v. United
Parcel Service, Inc.]{.underline}, 862 F.Supp. 336 (W.D. Okl. 1994)
(same).[^12]

The blanket exclusion at issue here is defined with specific reference
to the DSM, and thus its scope of coverage includes every "mental
disorder" listed in the DSM. The DSM is intended to be comprehensive and
exhaustive, cataloging and describing any and all conditions with which
psychiatrists may diagnose an individual seeking psychiatric treatment,
ranging from common afflictions such as mild depression or insomnia to
more serious conditions such as bi-polar disorder and schizophrenia.
Thus, the DSM includes many conditions that, while they may
substantially limit one or more of an individual's major life activities
and thus amount to "disabilities" under the ADA, do not necessarily
impose any limitations at all on the individual's ability to perform the
essential functions of the position at issue.[^13] For example, the
DSM-IV includes descriptions of certain sexual dysfunctions and eating
disorders that could substantially affect a major life activity such as
reproduction or eating but which have no effect whatsoever on an
individual's ability to perform the duties of a police officer.

Blanket exclusions will rarely be job-related and consistent with
business necessity. [See]{.underline}, [e.g.]{.underline}, [Albertson's,
Inc. v. Kirkingburg]{.underline}, 527 U.S. 555 (1999); [EEOC v. Exxon
Corp.]{.underline}, 203 F.3d 871 (5^th^ Cir. 2000). As provided in the
ADA, in order for any employment qualification standard to be considered
"job-related and consistent with business necessity," it must relate to
the "essential functions" of the specific job to which it is being
applied and measure the individual's actual ability to perform those
functions. [See]{.underline} 29 C.F.R. §1630.10, App.; EEOC Technical
Assistance Manual for Title I of the ADA at §4.3.[^14] "It is not enough
that \[a standard\] measures qualifications for a general
[class]{.underline} of jobs" -- rather, to be job-related and consistent
with business necessity, the standard must relate directly to the
specific job for which the individual is being considered, and measure
the individual's ability to perform the essential functions of that
particular job. [Id]{.underline}. at §4.3(1) (emphasis added).[^15]
Thus, in order to prevail on a claim that the blanket exclusion at issue
in this case is job-related and consistent with business necessity under
the ADA, Defendants would have to prove that the requirement that
individuals "be free of all apparent mental disorders listed in the DSM"
directly relates to ability of such individuals to perform a specific,
concrete job function that is "essential" to the performance of all
police officer positions in the state. Defendants cannot carry this
burden.[^16]

Defendants cannot show that the blanket exclusion directly measures
skills required by the job of police officer or the actual ability of
individuals to perform the essential functions of that position. In
fact, by categorically excluding all individuals with any apparent
mental disorder at any stage of employment, including those who have
successfully worked as police officers for years, the standard requires
employers to ignore the best evidence of the individual's actual ability
to perform the functions of the police officer position. "Once an
employee is on the job, the actual performance on the job is, of course,
the best measure of his ability to do the job." Senate Report at 38;
Labor Report at 74.[^17]

Rather than pertaining to a specific essential job function, the
standard at issue in this case simply excludes an entire class of
individuals with disabilities because they are presumed to pose a safety
threat. Consequently, because the standard does not measure an
individual's actual ability to perform the essential functions of the
job of police officer, it is not job-related and consistent with
business necessity.[^18] Thus, the only way for Defendants to establish
that this qualification standard is lawful under the ADA is to prove
that it meets the ADA's criteria for a qualification standard that
excludes individuals who pose a direct threat.

**B. The Blanket Exclusion Cannot Be Justified Under the "Direct Threat"
Provision**

As shown, this employment qualification standard does not measure the
ability of individuals to perform the essential functions of the
position of police officer; instead, it presumes the inability of an
entire class of individuals to perform those functions
[safely]{.underline}. As such, it falls into the category of
qualification standards that exclude categories of individuals that,
regardless of their skills or abilities, are deemed to pose an
unacceptable safety risk. Although such standards are not always
unjustified, they are significantly more susceptible to employer
speculation and stereotyping on the basis of disability -- precisely
what the ADA was intended to prohibit. Because such standards are
imposed for the purpose of protecting public health and safety, they are
only valid under the ADA if they qualify under its express provision
regarding safety standards imposed for this purpose -- the "direct
threat" provision. [See]{.underline} 42 U.S.C. §12113(b);
[see]{.underline} [also]{.underline} Judiciary Report at 486 ("If the
\[individual\] is otherwise qualified for the job, he or she cannot be
disqualified on the basis of a physical or mental condition unless the
employer can demonstrate that the \[individual's\] disability poses a
direct threat to others in the workplace.")

For Defendants to justify this qualification standard under the direct
threat provision, they bear the substantial burden of proving that any
individual with any mental disorder listed in the DSM who applies for a
job as a police officer will necessarily pose a "direct threat" to the
health or safety of others -- that is, a significant risk of substantial
harm that cannot be reduced or eliminated by reasonable accommodation.
42 U.S.C. §12113(b). It is simply not sufficient for Defendants to make
the conclusory assertion that the entire class of individuals who have
any kind of mental disorder listed in the DSM may potentially pose a
direct threat -- they must demonstrate that this is in fact the
case.[^19] Given the overbreadth of the statutory provision -- requiring
the blanket exclusion of all individuals with "mental disorders" no
matter whether they are diagnosed with insomnia or paranoid
schizophrenia -- this burden cannot possibly be met. As the Supreme
Court observed in the seminal direct threat case, "\[t\]he fact that
*some* persons who have contagious diseases may pose a serious health
threat to others under certain circumstances does not justify
excluding\...*all* persons with actual or perceived contagious
diseases." [School Board of Nassau County v. Arline]{.underline}, 480
U.S. 273, 285 (1987).

First, to meet the "direct threat" standard, there must be a
"significant" risk of substantial harm, and it cannot be either
speculative or remote. In [Bragdon v. Abbott]{.underline}, 524 U.S. 624
(1998), the U.S. Supreme Court discussed the origin of the ADA's "direct
threat" provision:

> The ADA's direct threat provision stems from the recognition in
> \[[Arline]{.underline}\] of the importance of prohibiting
> discrimination against individuals with disabilities while protecting
> others from significant health and safety risks\...Because few, if
> any, activities in life are risk-free, [Arline]{.underline} and the
> ADA do not ask whether a risk [exists]{.underline}, but whether it is
> [significant]{.underline}.

[Id]{.underline}., 524 U.S. at 649 (emphasis added, internal citations
omitted).[^20] The direct threat standard thus represents the balance
struck by the Court in [Arline]{.underline} and codified by Congress in
the ADA, advancing the "goal of protecting handicapped individuals from
deprivations based on prejudice, stereotypes, or unfounded fear, while
giving appropriate weight to such legitimate concerns of \[employers\]
as avoiding exposing others to significant health and safety risks."
[Arline]{.underline}, 480 U.S. at 287. It is precisely because persons
with disabilities have long been excluded from jobs on the assumption
that they may pose some greater risk of injury or accident that Congress
saw fit to define as "significant" the level of risk an employer must
show to justify disqualifying an individual whose disability poses a
potential health or safety risk. 42 U.S.C. §12111(3).[^21]

Secondly, the specific risk alleged must be [identified]{.underline} and
assessed on a case-by-case basis, based on objective medical or other
factual evidence relating to the individual in question.[^22] "Whether
one is a direct threat is a complicated, fact-intensive question, not a
question of law. To determine whether a particular individual performing
a particular act poses a direct risk to others is a matter for the trier
of fact to determine after weighing all the evidence about the nature of
the risk and the potential harm." [Rizzo v. Children's World Learning
Centers, Inc.]{.underline}, 84 F.3d 758, 764 (5^th^ Cir. 1996) ("[Rizzo
I]{.underline}").[^23] Thus, courts have struck down safety-based
blanket exclusions of insulin-dependent diabetics that the employers had
attempted to defend under the direct threat provision precisely because
no individualized assessment was conducted. [See]{.underline},
[e.g.]{.underline}, [EEOC v. Chrysler Corp.]{.underline};
[Bombrys]{.underline}; [Sarsycki]{.underline}; [see]{.underline}
[also]{.underline} [Stillwell]{.underline} (no individualized assessment
of one-handed person's ability to perform the essential functions of the
job of a security guard); [Krocka]{.underline} (no individualized
assessment where police officers taking Prozac were automatically placed
under a special monitoring program).[^24]

In a case involving another of the qualification standards for police
officers mandated by the same statute at issue in this case, the Sixth
Circuit recently reaffirmed that it is this basic principle of
individualized assessment that "lies at the heart of the ADA." [Holiday
v. City of Chattanooga]{.underline}, 206 F.3d 637, 643 (6th Cir.
2000).[^25] The Court explained that:

> The ADA mandates an individualized inquiry in determining whether an
> employee's disability or other condition disqualifies him from a
> particular position. In order to properly evaluate a job applicant on
> the basis of his personal characteristics, the employer must conduct
> an individualized inquiry into the individual's actual medical
> condition, and the impact, if any, the condition might have on that
> individual's ability to perform the job in question.

[Id]{.underline}. at 646-7 (citations omitted).[^26]

In [Holiday]{.underline}, the Court was not presented with the question
of whether the statutory requirement itself -- which merely requires
that persons pass a physical exam to be police officers[^27] -- was
valid, but whether the City had violated the ADA by the manner in which
it had purportedly interpreted the requirement -- essentially, by
reading into it a blanket qualification standard that police officers
"be free" of HIV. The Sixth Circuit rejected the City's attempt to hide
behind the statute, holding that the plaintiff had presented sufficient
evidence to permit a jury to conclude that

> \[the City had\] failed to undertake the individualized determination
> that the ADA requires and instead disqualified \[the plaintiff\]
> because of his HIV status -- without any indication that \[his\]
> condition actually impeded his ability to perform as a police
> officer\[, that the City's claim\] that \[the plaintiff\] was not
> hired for the non-discriminatory reason that he did not fulfill the
> statutory requirements\...is mere pretext\[, and\] that the City in
> fact withdrew its employment offer because of its fears that \[the
> plaintiff\] would transmit HIV on the job.

[Id]{.underline}. at 644, 646-7.[^28] Just as the ADA prohibited the
City employer in [Holiday]{.underline} from relying upon an
unsubstantiated medical conclusion that a person with HIV was unable to
serve as a police officer, and instead required the City to conduct an
individualized assessment of the actual impact of the plaintiff's
disability on his ability to safely perform the essential functions of
the job, the ADA must also prohibit the blanket exclusion of people with
any "apparent mental disorder" in this case.

**II. Statutory Provisions Mandating a Discriminatory Employment
Qualification Standard Are Preempted by the ADA and Have No Legal Force
or Effect**

"It is well settled that under the Supremacy Clause a state statute
which conflicts with a federal statute cannot stand." [EEOC v. County of
Allegheny]{.underline}, 705 F.2d 679 (3rd Cir. 1983) (state age limit on
police officers preempted by ADEA), citing [Jones v. Rath Packing
Co.]{.underline}, 430 U.S. 519, 525-526 (1977); [EEOC v. State of
Illinois]{.underline}, 69 F.3d 167 (7th Cir. 1995) (state school
retirement code preempted by ADEA); [Oconomowoc Residential Programs,
Inc. v. City of Greenfield]{.underline}, 23 F.Supp.2d 941 (E.D. Wis.
1998) (discriminatory state zoning statutes preempted

by ADA); [Coleman v. Casey County Board of Education]{.underline}, 510
F.Supp. 301, 303 (W.D. Ky. 1980) (safety regulation preventing man with
one leg from driving school bus preempted by Rehabilitation Act);
[T.E.P. v. Leavit]{.underline}, 2 A.D. Cases (BNA) 1299 (D. Utah 1993)
(holding that the ADA preempted a state domestic relations law).[^29]
Preemption "is compelled whether Congress' command is explicitly stated
in the statute's language or implicitly contained in its structure and
purpose." [Gade v. National Solid Wastes Management Ass'n]{.underline},
112 S.Ct. 2374, 2383 (1992). In the instant case, preemption is both
express and implied.

Express preemption occurs when a statute or its legislative history
actually states that the statute is intended to preempt laws.
[Id]{.underline}. Implicit preemption occurs when "compliance with both
federal and state regulations is a physical impossibility," [Florida
Lime & Avocado Growers, Inc. v. Paul]{.underline}, 373 U.S. 132, 142-43
(1963), or when state law "stands as an obstacle to the accomplishment
and execution of the full purposes and objectives of Congress." [Hines
v. Davidowitz]{.underline}, 312 U.S. 52, 67 (1941); [Felder v.
Casey]{.underline}, 487 U.S. 131, 138 (1988); [Perez v.
Campbell]{.underline}, 402 U.S. 637, 649 (1971). In deciding whether
federal law implicitly preempts state law, the Court\'s task is simply
"to determine whether state regulation is consistent with the

structure and purpose of the \[federal\] statute." [Gade]{.underline},
112 S.Ct. at 2383. When an inconsistency exists, state law must yield,
even if the state law involves an area that has traditionally been a
subject of state regulation. [Id]{.underline}.[^30]

Express statements made in the ADA and its legislative history make
clear that Congress intended to preempt state laws when they impair the
employment opportunities of persons with disabilities. Section 501(b) of
the ADA, 42 U.S.C. §12201(b), addresses preemption in the following
terms:

> Nothing in \[the ADA\] shall be construed to invalidate or limit the
> remedies, rights and procedures of any Federal law or law of any
> State\...that provides greater or equal protection for the rights of
> individuals with disabilities than are afforded by this Act.

By providing an express exemption from preemption for those state laws
that provide an equal or greater level of protection, Congress plainly
expressed its intent that all laws that conflict with the ADA
[are]{.underline} preempted. Title I also contains an express limitation
on the ADA's preemption of state laws regarding food handling and
persons with communicable diseases:

> \(3\) Construction. Nothing in this Act shall be construed to preempt,
> modify, or amend any State, county, or local law, ordinance, or
> regulation applicable to food handling which is designed to protect
> the public health from individuals who pose a significant risk to the
> health or safety of others, which cannot be eliminated by reasonable
> accommodation\...

42 U.S.C. §12113(d). If Congress had not intended the ADA to preempt
conflicting state laws, there would be no need for either of these
explicit provisions.[^31] [See]{.underline} [also]{.underline} EEOC
Technical Assistance Manual for Title I of the ADA at §4.6(2) ("An
employer may not rely on the existence of a state or local law that
conflicts with ADA requirements as a defense to a charge of
discrimination.") Therefore, because the statutory provisions at issue
in this case conflict with the ADA, they are preempted and have no legal
force or effect.

**A. Employers May Not Rely Upon the Statutory Provisions as a Defense
to a Claim of Unlawful Discrimination Under the ADA**

In an attempt to make an end-run around the ADA's preemption of
conflicting state statutes, Defendants argue that "the ADA does not
require an employer to accommodate a person's disability by ignoring
duties imposed by state or federal statute." [See]{.underline}
Defendant's [Memorandum of Law]{.underline}, p. 13. Defendants make no
argument and cite only two cases for this proposition, neither of which
provide any support for the claim that Defendants were even permitted
(much less bound) to comply with the blanket exclusion mandated by the
statutory provision at issue in this case rather than the ADA.

First, Defendants appear to confuse the question presented in this case
-- involving the validity of a [state]{.underline} statutory provision
that directly violates the ADA -- with the issue presented in cases
involving certain [federal]{.underline} regulations which the ADA
specifically permits employers to implement. Defendants cite
[Albertson's, Inc. v. Kirkingburg]{.underline}, 527 U.S. 555 (1999), in
which the Supreme Court held that an employer could implement federal
DOT vision standards applicable to commercial truck drivers without
violating the ADA. [Id]{.underline}. at 577-78. However, that case and
similar cases upholding the validity of federal regulations are wholly
inapposite to the instant case. The ADA specifically permits compliance
with other federal laws:

> Conflict with other Federal laws. It may be a defense to a charge of
> discrimination\...that a challenged action is required or necessitated
> by another Federal law or regulation, or that another Federal law or
> regulation prohibits an action (including the provision of a
> particular reasonable accommodation) that would otherwise be
> required\...

29 C.F.R. §1630.15(e).[^32] However, neither this provision nor
[Albertson's]{.underline} has anything to say about compliance with
conflicting state laws, since such laws are preempted.

Secondly, Defendants confuse the concept of a job's essential functions,
or "job duties," with what is at issue in this case -- an employment
qualification standard that categorically excludes a class of
individuals with disabilities -- and imply that they are the same thing.
Defendants cite [Brickers v. Cleveland Board of Education]{.underline},
145 F.3d 846 (6th Cir. 1998), in which the Sixth Circuit ruled that
lifting was an "essential function" of a state school bus attendant
position, despite the fact that it may only be required during
emergencies, and relied in part on the fact that a state statute
outlining qualification standards for bus attendants required that such
employees have the "\[p\]hysical capability of appropriately lifting and
managing handicapped pupils when necessary." [Id]{.underline}. at 850;
[see]{.underline} Ohio Admin. Code §3301-83-06(D)(1).[^33]

Defendants' citation of the [Brickers]{.underline} case as support for
their claim that the blanket exclusion at issue in this case must be
honored simply because the state mandates it belies their fundamental
misunderstanding of the ADA's requirements regarding employment
qualification standards. [Brickers]{.underline} concerned the proper
definition of an "essential function" under the ADA, which is a purely
analytical, fact-based exercise designed to determine what specific
functions are so essential to a job that an employer may require all
employees to perform them, regardless of disability, with or without
reasonable accommodation. In other words, as long as a given job
function is "essential," employers may require all employees to perform
that function notwithstanding the fact that imposition of such a
requirement may screen out certain individuals with disabilities who
cannot perform the function even with reasonable accommodation. The ADA
provides a list of several factors to be considered in determining
whether a given job function is "essential," and specifically gives
consideration to the employer's judgment in this regard.
[See]{.underline} 42 U.S.C. §12111(8). In [Brickers]{.underline}, the
Court simply concluded that state law -- which is tantamount to the
employer's judgment where the state is the employer -- was relevant to
its determination whether the actual job function of lifting was, in
fact, "essential" to the performance of the position of bus attendant.

The Court's analysis of the "essential functions" question in
[Brickers]{.underline} has no bearing on this case, which involves the
validity, not of an employer's claim that a given function of one of its
jobs is "essential," but of an employment qualification standard imposed
upon the employer by the state -- a standard which, by its nature, is
imposed as a threshold requirement [prior]{.underline} to any
consideration of the individual's ability to perform any particular job
function. Thus, the Court's holding in [Brickers]{.underline} provides
no support for Defendants' claim that they were obliged to comply with
conflicting state law rather than the ADA. Because the requirements of
the statutory provisions conflict with the requirements of ADA, the
statutory provisions are preempted and have no legal force and effect.
Consequently, as an invalid employment qualification standard, the
existence of Tenn. Code Ann. §38-8-106(9) can have absolutely no bearing
on the question whether Plaintiff is a "qualified individual with a
disability" and thus covered by the ADA, [see]{.underline} Defendants'
[Memorandum of Law]{.underline}, p. 13, and Defendants are estopped from
relying upon the statute as any kind of defense to Plaintiff's claim of
unlawful discrimination.[^34]

**B. Employers May Be Held Fully Liable for Their Violations of the ADA
Notwithstanding the Statutory Provisions**

Numerous cases have held that employers are liable for violating federal
civil rights laws regardless of the fact that they may have been acting
pursuant to state law, where the state law conflicted with and was
therefore preempted by the federal statute. As the Seventh Circuit put
it, such employers may feel "compelled to follow the directive from the
state, but the Supremacy Clause of the Constitution requires a different
order of priority. A discriminatory state law is not a defense to
liability under federal law, [it is a source of liability under federal
law]{.underline}." [Quinones v. City of Evanston]{.underline}, 58 F.3d
275, 276 (7th Cir. 1995) (emphasis added), citing [Williams v. General
Foods]{.underline}, 492 F.2d 399, 407-08 (7th Cir. 1974) (reliance on
state statute improper defense to Title VII action). In
[Quinones]{.underline}, the Seventh Circuit affirmed the district
court's denial of the city's motion for summary judgment in an ADEA
case, based on the court's conclusion that "a political subdivision of a
state is not shielded from liability for employment discrimination in
violation of \[federal law\] merely because its actions were mandated by
contrary state law." [Quinones v. City of Evanston]{.underline}, 829
F.Supp. 237, 240 (N.D. Ill. 1993).

Other circuit courts have reached the same conclusion.
[See]{.underline}, [e.g.]{.underline}, [EEOC v. County of
Allegheny]{.underline}, 705 F.2d 679, 682 (3rd Cir. 1983) (holding that
a county could not invoke its reliance upon a state statute as a defense
to its refusal to allow individuals over 35 years old to take the police
examination in violation of the ADEA, since "reliance on \[ \] an
unconstitutional statute cannot justify employment discrimination");
[Rosenfield v. Southern Pacific Co.]{.underline}, 444 F.2d 1219, 1227
(9^th^ Cir. 1971) (state requirement did not excuse company's
discriminatory policy); [see]{.underline} [also]{.underline} [Kober v.
Westinghouse Elect. Corp.]{.underline}, 480 F.2d 240, 245-46 (3rd Cir.
1973) ("conclud\[ing\] that it is now the law that discrimination based
on reliance on conflicting state statutes is an intentional unfair
employment practice" and collecting cases); and [Davis v. City of
Camden]{.underline}, 657 F.Supp. 396, 402-04 (D.N.J. 1987) (collecting
cases in related areas). Therefore, because the statutory provisions
violate and conflict with the ADA, they are facially invalid and
preempted under the Supremacy Clause. Just as Defendants may not violate
the ADA by implementing the blanket exclusion mandated by the invalid
statutory provisions, they also may not invoke them as a defense to a
claim of unlawful discrimination under the ADA.

**CONCLUSION**

For the foregoing reasons, the United States urges this Court to make
the following findings as a matter of law, and to rule on Defendants'
Motion for Summary Judgment accordingly: (1) Tenn. Code Ann.
§38-8-106(9) and other statutory provisions mandating the blanket
exclusion from employment of all persons with "any apparent mental
disorder" violate the ADA, and are therefore facially invalid, and (2)
Tenn. Code Ann. §38-8-106(9) and other statutory provisions mandating
the blanket exclusion from employment of all persons with "any apparent
mental disorder" conflict with and thus are preempted by the ADA, and
employers who implement this invalid statutory provision have violated
the ADA and may not invoke the statute as a defense to liability for
such violations.

Respectfully submitted,

BILL LANN LEE

Assistant Attorney General

Civil Rights Division

By: \_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_

JOHN L. WODATCH, Chief

RENEE M. WOHLENHAUS, Deputy Chief

PHILIP L. BREEN, Special Legal Counsel

M. CHRISTINE FOTOPULOS, Attorney

Disability Rights Section

Civil Rights Division

U.S. Department of Justice

P.O. Box 66738

Washington, D.C. 20035-6738

\(202\) 305-7475

Dated: December \_\_\_\_, 2000

**CERTIFICATE OF SERVICE**

Pursuant to Local Rule 7.2, I, M. Christine Fotopulos, declare:

I am over the age of 18 and not a party to the within action. I am
employed by the U.S. Department of Justice, Civil Rights Division,
Disability Rights Section. My business address is 1425 New York Avenue,
Suite 4039, Washington, D.C. 20005.

On December 4, 2000, I served a true and correct copy of the attached
document

> **UNITED STATES' BRIEF AS *AMICUS CURIAE*** **IN RESPONSE TO
> DEFENDANTS' MOTION FOR SUMMARY JUDGMENT**

on each person or entity named below by enclosing a copy in an envelope
addressed as shown below and depositing the same with Federal Express
for priority overnight delivery.

Date and Place of Service: December 4, 2000, Washington, D.C.

Person(s) and/or Entity(ies) to Whom Mailed:

Justin S. Gilbert, Esq. Pamela L. Reeves

The Gilbert Firm Watson, Hollow & Reeves

300 E. Main Street, Suite 200 1700 First Tennessee Plaza

Jackson, TN 38301 800 South Gay Street

Knoxville, TN 37901

*Attorney for Plaintiff*

*Attorney for Defendants*

I declare under penalty of perjury under the laws of the United States
of America that the foregoing is true and correct.

Executed on: December 4, 2000, at Washington, D.C.

\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_

M. Christine Fotopulos

[^1]: The Diagnostic and Statistical Manual, or "DSM," is a compendium
    of all mental conditions that psychiatrists generally consider to be
    "mental disorders." [Diagnostic and Statistical Manual of Mental
    Disorders]{.underline}, Fourth Edition ("[DSM-IV]{.underline}"),
    American Psychiatric Association (Washington, D.C. 1994). The DSM
    states that its "purpose\...is to provide clear descriptions of
    diagnostic categories in order to enable clinicians to diagnose,
    communicate about, study, and treat people with various mental
    disorders." DSM-IV at xxvii.

[^2]: The state statute applicable to public safety dispatchers, Tenn.
    Code Ann. §7-86-201, contains an ineffective "grandfather provision"
    which purports to exempt current employees who have mental
    disabilities covered by the ADA, but only if they are over fifty
    years-old and have been continuously working as a public safety
    dispatcher for five years. [See]{.underline} Tenn. Code Ann.
    §7-86-201(d). Similarly, a separate state statute applicable to
    police officers, Tenn. Code Ann. §38-8-104, authorizes the Peace
    Officer Standards and Training (POST) Commission to "establish
    criteria for determining whether to grant an exception to or waive
    the qualifications of minimum standards" as provided in Tenn. Code
    Ann. §38-8-106, "except that no waiver or exception shall be granted
    for\...mental illness."

[^3]: Section (9) of Tenn. Code Ann. §38-8-106 mandates the requirement
    excerpted above with respect to police officers.

[^4]: The United States also currently has active claims in a related
    case currently pending before this Court, [Nored v. Weakley County
    Emergency Communications District, et al.]{.underline} (Case No.
    1:98-1357), in which the United States challenges the State of
    Tennessee's enactment and implementation of all five of these
    statutory provisions, as well as the implementation of the
    provisions by city and county employers. When this Court certified
    the challenge to the statutory provisions' validity to the state
    Attorney General, pursuant to 28 U.S.C. §2403 and Fed. R. Civ. P.
    24(c), the state declined to defend them.

[^5]: Defendants also raise several other defenses to liability,
    arguing, *inter alia*, that Plaintiff is not a person with a
    disability and was not qualified for the desired position, and,
    alternatively, that he was offered and refused a position as a
    public safety dispatcher as a reasonable accommodation. The United
    States expresses no opinion with respect to these additional claims,
    except to note that Defendants appear to have overlooked the fact
    that, as a public safety dispatcher, Plaintiff would have been
    subject to the same blanket exclusion, and thus, under their theory,
    ineligible for employment in that position. [See]{.underline} Tenn.
    Code Ann. §7-86-201.

[^6]: An individual has a "disability" under the ADA if he or she has "a
    physical or mental impairment that substantially limits one or more
    of the major life activities of such individual; a record of such an
    impairment; or \[is\] regarded as having such an impairment." 42
    U.S.C. §12102(2).

[^7]: "Qualification standards" refers to "the personal and professional
    attributes including\...physical, medical, safety and other
    requirements established by a covered entity as requirements which
    an individual must meet in order to be eligible for the position
    held or desired." 29 C.F.R. §1630.2(q).

[^8]: The term "discriminate" also includes "classifying a job applicant
    or employee in a way that adversely affects the opportunities or
    status of such applicant or employee because of \[their\]
    disability," and "not making reasonable accommodations to the known
    physical or mental limitations of an otherwise qualified individual
    with a disability who is an applicant or employee, unless \[the\]
    covered entity can demonstrate that the accommodation would impose
    an undue hardship on the operation of \[its\] business." 42 U.S.C.
    §12112(b)(1) and (5)(a).

[^9]: The burden is on the employer to produce evidence establishing
    that the standard meets these requirements in any given case.
    [See]{.underline} [Andrews v. Ohio]{.underline}, 104 F.3d 803,
    807-808 (6th Cir. 1997).

[^10]: Although the United States maintains that this blanket exclusion
    is facially invalid as contained in all of the state statutes with
    respect to all five law enforcement jobs, for purposes of this
    *amicus* brief, we will hereafter limit our discussion to the one
    statute at issue in this case, and thus to the imposition of the
    standard on "police officers." [See]{.underline} Tenn. Code Ann.
    §38-8-106.

[^11]: The EEOC's Technical Assistance Manual was issued on January 27,
    1992, pursuant to express statutory directive. 42 U.S.C.
    §12206(c)(3).

[^12]: Similar blanket employment policies have been found equally
    invalid under the ADA because they do not allow for a case-by-case
    assessment of an individual's ability to perform the essential
    functions of the job with or without a reasonable accommodation. For
    example, in [Krocka v. Bransfield]{.underline}, 969 F.Supp. 1073,
    1089 (N.D. Ill. 1997), the court held that a police department's
    mandatory policy of automatically placing officers taking Prozac
    under a special monitoring program violated the ADA.
    [See]{.underline} [also]{.underline} [Heise v. Genuine Parts
    Co.]{.underline}, 900 F.Supp. 1137, 1154 & n.10 (D. Minn. 1995)
    (holding that an employer's "100% healed" policy, in which injured
    employees were required to be completely free of any physical
    restrictions before they were permitted to return to work, was a
    [per]{.underline} [se]{.underline} violation of the ADA);
    [Hutchinson v. United Parcel Service]{.underline}, 883 F.Supp. 379,
    397 (N.D. Iowa 1995) (same); [Hammer v. Board of Education of
    Arlington Heights School District No. 25]{.underline}, 955 F.Supp.
    921, 927 (N.D. Ill. 1997) (finding a disputed question of fact as to
    whether the employer in fact had a "blanket policy," but noting that
    "a [per]{.underline} [se]{.underline} violation \[of the ADA\] is
    one in which an individual assessment of an individual's ability to
    perform the essential functions of the person's job with or without
    accommodation is not made by the employer.")

[^13]: The DSM contains the following cautionary statement regarding its
    use outside of medical settings, which makes clear that diagnosis
    alone does not equate to an individualized assessment of what actual
    limitations, if any, are posed by any particular mental disorder:

    > \[T\]he fact that an individual's presentation meets the criteria
    > for a DSM-IV diagnosis does not carry any necessary implication
    > regarding the individual's degree of control over the behaviors
    > that may be associated with the disorder. Even when diminished
    > control over one's behavior is a feature of the disorder, having
    > the diagnosis in itself does not demonstrate that a particular
    > individual is (or was) unable to control his or her behavior at a
    > particular time.

    DSM-IV at xxiii.

[^14]: "Essential functions" are the fundamental job duties of the
    position at issue, as distinguished from its marginal functions. 29
    C.F.R. §1630.2(n). They are the specific job tasks themselves,
    rather than the way the tasks are performed. [See]{.underline},
    [e.g.]{.underline}, H.R. Rep. No. 485 part 2, 101^st^ Cong., 2d Sess
    54-55 (1990) (Labor Report) ("driving" or "typing" are "essential
    functions" if they are fundamental to a particular job); H.R. Rep.
    No. 485 part 3, 101^st^ Cong., 2d Sess. 32 (1990) (Judiciary Report)
    ("essential function" of job requiring use of a computer "is the
    ability to access, input and retrieve information from the
    computer"); 29 C.F.R. part 1630, App. §1630.2(n) (examples of
    "essential functions" include operating a cash register for a
    cashier's job; carrying a person from a burning building for a
    firefighter; typing for a typist; and cleaning for a chambermaid).
    [See]{.underline} [also]{.underline} EEOC's Technical Assistance
    Manual for Title I of the ADA at §2.3(b) (examples of job functions
    that may be essential include filing, answering the telephone, or
    typing for clerical job; proofreading for a proofreader job;
    availability to work odd shifts for substitute "floating"
    supervisor; foreign language fluency for job selling products to
    foreign companies; landing a plane for pilot position).

[^15]: [See]{.underline} Senate Report at 36-37 (qualification standards
    that screen out an individual or class of individuals "because of a
    disability\...must concern an essential, non-marginal aspect of the
    job, and be carefully tailored to measure the person's actual
    ability to do this essential function of the job"); Labor Report at
    70-71; [see]{.underline} [also]{.underline} Judiciary Report at 42
    ("\[t\]he requirement that job selection procedures be job-related
    and consistent with business necessity underscores the need to
    examine all selection criteria to assure that they\...provide an
    accurate measure of an applicant's actual ability to perform the
    job."); [see]{.underline} [also]{.underline} [Hendricks-Robinson v.
    Excel Corp.]{.underline}, 154 F.3d 685, 698-99 (7th Cir. 1998)
    (finding "most troubling" the possibility that an employer may have
    imposed a "separate criterion of 'physical fitness' -- unrelated to
    job requirements -- as a qualification standard for promotions,
    layoffs and recalls \[because it would\] tend\[\] to screen out,
    whether intentionally or unintentionally, disabled employees," and
    thus "violat\[e\] the ADA's requirement of an individualized
    assessment of an employee's capabilities.")

[^16]: Even in cases where a qualification standard would be job-related
    and consistent with business necessity, employers are still
    prohibited from invoking the standard to deny a job to an individual
    with a disability unless they can show that no reasonable
    accommodation is available that would allow the individual to
    perform the job. [See]{.underline} 42 U.S.C. §12113(a). By their
    nature, blanket exclusions are irreconcilable with this requirement,
    since they eliminate the individual from the pool before any
    reasonable accommodation can be considered.

[^17]: [See]{.underline}, [e.g.]{.underline}, [Prewitt v. United States
    Postal Service]{.underline}, 662 F.2d 292, 309 (5^th^ Cir. 1981)
    (holding in a case brought under the Rehabilitation Act that the
    plaintiff, who had satisfactorily performed the job of postal worker
    in the past despite his disability, had "raised a genuine issue of
    material fact as to whether the postal service's physical standards
    for employment are sufficiently 'job related' to justify the
    employer's refusal to hire him" for the position).

[^18]: Although a given qualification standard may be so unrelated to
    the job to which it applies that it may be found to be
    [not]{.underline} job-related and consistent with business necessity
    as a matter of law, the reverse is not true. The Sixth Circuit has
    stated that the determination that an employment qualification
    standard [is]{.underline} job-related and consistent with business
    necessity must take into consideration the way the criteria are
    actually imposed in the specific case. [See]{.underline} [Andrews v.
    Ohio]{.underline}, 104 F.3d 803, 807 (6th Cir. 1997) (affirming
    dismissal of an ADA claim but rejecting the district court's
    conclusory determination that state-mandated weight and fitness
    qualification standards were job-related and consistent with
    business necessity as a matter of law, where the court had not
    considered the application of the standards in the circumstances of
    that case).

[^19]: In addition, even if a genuine significant risk of substantial
    harm were to exist in any given case, the employer would be required
    to consider whether the risk could be eliminated or reduced below
    the level of "direct threat" by reasonable accommodation. Again,
    except where it can be definitively established that no reasonable
    accommodation could ever be offered to allow any person subject to
    the exclusion to safely perform the essential functions of the job,
    blanket exclusions are clearly inconsistent with this requirement.
    42 U.S.C. §12101(3).

[^20]: In [Bragdon]{.underline}, the Supreme Court held that an
    individual doctor's unsupported belief that a patient's HIV status
    rendered her a health risk was not dispositive under the ADA.
    [Id]{.underline}., 524 U.S. at 655. Instead, the determination
    whether an individual poses a direct threat to the safety of others
    "must be based on medical or other objective evidence."
    [Id]{.underline}., 524 U.S. at 649. In [Arline]{.underline}, the
    Court had held that a teacher with tuberculosis would not be
    qualified for her position only if she posed a "significant risk to
    others in the workplace." [Id]{.underline}., 480 U.S. at 287.

[^21]: [See]{.underline} [also]{.underline} [Arline]{.underline}, 480
    U.S. at 287 (the determination whether a person with a disability is
    "qualified" requires an "individualized inquiry" based upon
    "appropriate findings of fact," not upon "prejudice, stereotypes, or
    unfounded fear"); Judiciary Report at 45 (the direct threat
    provision "sets a clear, defined standard which requires actual
    proof of significant risk to others"); Labor Report at 74 ("A
    physical or mental employment criterion can be used to disqualify a
    person with a disability only if \[it\] has a direct impact on the
    ability of the person to do their actual job duties without
    imminent, substantial threat of harm."); [see]{.underline}
    [also]{.underline} [Hamlin v. Charter Township of
    Flint]{.underline}, 165 F.3d 426, 432 (6^th^ Cir. 1999) (finding
    that a city had not established that its fire chief posed a direct
    threat, since it "did not establish as a matter of law that there
    was a high probability of potential harm because of \[the
    plaintiff's\] physical limitations, or that the alleged risk was
    anything more than speculative or remote.")

[^22]: This is also fully supported by the legislative history of the
    ADA. [See]{.underline}, [e.g.]{.underline}, House Report at 56-57
    (quoting [Hall v. U.S. Postal Service]{.underline}, 857 F.2d 1073,
    1079 (6^th^ Cir. 1988), additional citations omitted) (direct threat
    determination "requires a fact-specific individualized inquiry
    resulting in a 'well-informed judgment grounded in a careful and
    open-minded weighing of the risks and alternatives'"); and Senate
    Report at 27 ("determination that an individual with a disability
    will pose a direct threat to others must be made on a case-by-case
    basis and not be based on generalizations, misperceptions,
    ignorance, irrational fears, patronizing attitudes, or pernicious
    mythologies").

[^23]: [But]{.underline} [see]{.underline} [EEOC v. Exxon
    Corp.]{.underline}, 203 F.3d 871 (5^th^ Cir. 2000) (holding that an
    employer did not have to conduct any individualized assessment of
    the risk presented by its employees' former substance abuse). That
    later case is distinguishable from this one in at least two ways.
    First, the panel opinion in [Exxon]{.underline} indicates that the
    Court may have reached a different conclusion with respect to the
    blanket exclusion at issue in this case, evidenced by its assumption
    (disproved by this case) that, unlike substance abuse, mental
    disorders are not typically the subject of a blanket exclusion.
    [Id]{.underline}. at 874 (noting that the ADA's "legislative
    history's examples of direct threat\...-- contagious illnesses,
    mental disabilities, and mental illnesses -- continue the focus on
    situations in which an employer might impose a safety standard in an
    individual's particular case separate from the general qualification
    standards required for the position.") (citations omitted).
    Secondly, the defendant in that case had relied heavily on its claim
    that it was impossible to conduct ongoing, often daily
    individualized assessment of alcoholic employees who work in remote
    locations. By contrast, in this case, individuals are already
    required to undergo psychological examination and interviewing, by
    which a "qualified professional" may determine whether the
    individuals are psychologically able to perform the essential
    functions of the job of police officer. [See]{.underline} Tenn. Code
    Ann. §38-8-106(9). Because it is customary to subject police
    officers to psychological evaluation, Defendants cannot argue that
    it is impossible to conduct a proper individualized assessment.

[^24]: The Fifth Circuit, which previously broke with its fellow
    circuits when it determined that "drivers with insulin-dependent
    diabetes pose a direct threat as a matter of law," [see]{.underline}
    [Chandler v. City of Dallas]{.underline}, 2 F.3d 1385 (5^th^ Cir.
    1993) and [Daugherty v. City of El Paso]{.underline}, 56 F.3d 695
    (5^th^ Cir. 1995), is currently debating the "continued viability"
    of this judge-created "tacit exception to \[the ADA's\] case-by-case
    approach," finding that "the time has come for a reevaluation of the
    facts that supported our previous [per]{.underline} [se]{.underline}
    holdings." [Kapche v. City of San Antonio]{.underline}, 176 F.3d
    840, 844, 847 (5^th^ Cir. 1999). That case is currently on appeal to
    the Fifth Circuit for the second time.

[^25]: In [Holiday]{.underline}, the City of Chattanooga had refused to
    hire a police officer with asymptomatic HIV, claiming that he was "a
    health and safety threat to others." [Id]{.underline}. at 641. By
    the time the case reached the Sixth Circuit, however, the City had
    "abandoned its prior assertion that Holiday's HIV status rendered
    him a direct threat to the health or safety of others," and now
    asserted that it could not hire Holiday because the doctor
    administering the state-mandated physical examination had concluded
    that he was simply "not strong enough to withstand the rigors of
    police work," and therefore he "did not fulfill an essential
    requirement of the position: that he pass the physical examination
    mandated by state law." [Id]{.underline}. at 641-42. Consequently,
    the City argued, he "was not 'otherwise qualified' for the position"
    of police officer, and the only reason he was not hired was that he
    "did not fulfill the statutory requirements." [Id]{.underline}. This
    is the same argument made by Defendants in this case.
    [See]{.underline} Defendants' Memorandum of Law, p. 13 ("Plaintiff
    cannot, as a matter of law, be considered a 'qualified individual
    with a disability,' since he cannot satisfy the requirements of
    Tenn. Code. Ann. §38-8-106.")

[^26]: This language tracks directly with the regulation describing what
    must be proven in order to establish that a person poses a "direct
    threat." [See]{.underline} 29 C.F.R. §1630.2(r) (such determination
    "shall be based on an individualized assessment of the individual's
    present ability to safely perform the essential functions of the
    job").

[^27]: Section (7) of the statute requires individuals employed as
    police officers to "\[h\]ave passed a physical examination by a
    licensed physician." Tenn. Code Ann. §38-8-106.

[^28]: The Sixth Circuit's reasoning in the [Holiday]{.underline} case
    is fully consistent with the ADA's prohibition against blanket
    exclusions that cannot meet the direct threat standard. By contrast,
    in [EEOC v. Exxon Corp.]{.underline}, 203 F.3d 871 (5^th^ Cir.
    2000), a panel of the Fifth Circuit recently departed from the
    Court's own precedents on the issue, ruling that the direct threat
    analysis does not apply to "across-the-board rules," but only to
    "standard\[s\] imposed on a particular individual."
    [Id]{.underline}. at 873. [See]{.underline}, [e.g.]{.underline},
    [Rizzo v. Children's World Learning Centers, Inc.]{.underline}, 173
    F.3d 254, 259-260 (5^th^ Cir. 1999) ("[Rizzo II]{.underline}")
    (holding that "with respect to safety requirements that screen out
    or tend to screen out" people with disabilities, the burden is on
    the "employer \[to\] demonstrate that the requirement, as applied to
    the individual, satisfies the 'direct threat' standard."); [Rizzo v.
    Children's World Learning Centers, Inc.]{.underline}, 213 F.3d 209,
    213 (5^th^ Cir. 2000) ([en]{.underline} [banc]{.underline}) ("[Rizzo
    III]{.underline}") (finding no error in that holding).

    In [Exxon]{.underline}, the Court considered the oil company's
    policy of removing from certain minimally supervised
    "safety-sensitive" positions (constituting about ten percent of its
    positions) any employee that has ever received treatment for
    substance abuse, a policy that it had implemented following the 1989
    Exxon [Valdez]{.underline} incident. Exxon argued that given the
    relapsing nature of alcoholism and substance abuse, it was
    impossible to individually monitor such employees. Conceding that
    its blanket policy screened out people with disabilities, Exxon
    argued, and the Court agreed, that it only had to establish that the
    policy was job-related and consistent with business necessity, and
    did not have to establish that every employee affected by the policy
    posed a direct threat. [Id]{.underline}. at 875. However, the Court
    qualified its holding by specifically interpreting the "job-related
    and consistent with business necessity" requirement to require proof
    of an actual safety threat:

    In so holding, we note that direct threat and business necessity do
    not present hurdles that comparatively are inevitably higher or
    lower but rather require different types of proof. Direct threat
    focuses on the individual employee, examining the specific risk
    posed by the employee's disability. In contrast, business necessity
    addresses whether the qualification standard can be justified as an
    across-the-board requirement. Either way, the proofs will ensure
    that the risks are real and not the product of stereotypical
    assumptions\...In evaluating whether the risks addressed by a
    safety-based qualification standard constitute a business necessity,
    the court should take into account the magnitude of possible harm as
    well as the probability of occurrence.

    [Id]{.underline}. Thus, while holding that Exxon's policy did not
    have to meet the direct threat standard, it imputed to the
    "job-related and consistent with business necessity" test the same
    factors that would be used to assess the existence of a direct
    threat. [See]{.underline} 29 C.F.R. §1630.2(r).

[^29]: Early preemption cases in the employment discrimination context
    involved state laws that regulated the work hours and rest periods
    of female employees in violation of Title VII. [See]{.underline},
    [e.g.]{.underline}, [Kreitner v. Bendix Corp.]{.underline}, 501
    F.Supp. 415 (W.D. Mich. 1980); [Homemakers, Inc., Los Angeles v.
    Division of Industrial Welfare]{.underline}, 356 F.Supp. 1111 (N.D.
    Cal. 1973), [affirmed]{.underline}, 509 F.2d 20 (9^th^ Cir. 1974);
    [General Electric Co. v. Young]{.underline}, 3 FEP Cases 560 (W.D.
    Ky. 1971); [Garneau v. Raytheon Co.]{.underline}, 323 F.Supp. 391
    (D.C. Mass. 1971); [Vogel v. Trans World Airlines]{.underline}, 346
    F.Supp. 805 (W.D. Miss. 1970); [see]{.underline} [also]{.underline}
    [Spirt v. Teachers Insurance and Annuity Ass'n]{.underline}, 691
    F.2d 1054, 1065 (2^nd^ Cir. 1982) (invalidating state statute
    permitting use of sex-based mortality tables); [Local 246, Utility
    Workers Union of America, AFL-CIO v. Southern California Edison
    Co.]{.underline}, 320 F.Supp. 1262 (D.C. Cal. 1970) (invalidating
    state statute imposing lifting restriction on female employees).

[^30]: There is no presumption against finding an implied preemption of
    state law. As one court explained:

    > There are two important differences between the analysis we employ
    > in determining whether a state law is expressly preempted by
    > federal law and that which we use in approaching questions of
    > implied preemption. First, in contrast to the strong presumption
    > against preemption that we apply in determining whether the
    > language of a federal statute or regulation expressly preempts
    > state law, [no such presumption is applicable in deciding whether
    > state law conflicts with federal law, even where the subject of
    > the state law is a matter traditionally regarded as properly
    > within the scope of the states\' rights.]{.underline} "'\[T\]he
    > relative importance to the State of its own law is not material
    > when there is a conflict with a valid federal law,' for 'any state
    > law, however clearly within a State's acknowledged power, which
    > interferes with or is contrary to federal law, must yield.'"
    >
    > The second difference between express and implied preemption
    > analysis is that in implied preemption analysis it is possible to
    > infer preemptive intent solely from effects. Even where the
    > preemptive intent behind the federal regulatory scheme is unclear
    > from its statutory language or legislative history, the federal
    > law nevertheless preempts the state law to the extent that the
    > ordinary application of the two laws creates a conflict.

    [Taylor v. General Motors Corp.]{.underline}, 875 F.2d 816, 826
    (11th Cir. 1989) (emphasis added), [quoting]{.underline}
    [Felder]{.underline}, 108 S.Ct. at 2306 and [Free v.
    Bland]{.underline}, 369 U.S. 663, 666 (1962).

[^31]: The ADA's legislative history makes this even clearer:

    > \[I\]f a state or locality has a disease control law, or any other
    > public health law, which places certain requirements on certain
    > employees, employers, or businesses but which does not
    > discriminate against people with disabilities, such laws would not
    > be affected by or preempted in any way by the ADA\.... In
    > addition, if a state\...has a disease control law or any other
    > public health law, which applies to certain people with
    > disabilities (for example, if a state has a law which required
    > people with certain contagious diseases, such as tuberculosis, to
    > take certain precautions), [that law would also not be preempted
    > by the ADA as long as the requirements of that state or local law
    > were designed to protect against individuals who pose a direct
    > threat to the health or safety of others]{.underline}.

    H. Conf. Rep. No. 101-596, 101st Cong., 2d Sess. 84 (1990),
    [reprinted in]{.underline} 1990 U.S.C.C.A.N. 593 (emphasis added).

[^32]: The EEOC's Interpretive Guidance for this regulation confirms the
    limitation of the exception to federal, not state, regulations:
    "There are several Federal laws and regulations that address medical
    standards and safety requirements. If the alleged discriminatory
    action was taken in compliance with another Federal law or
    regulation, the employer may offer its obligation to comply with the
    conflicting standard as a defense." 29 C.F.R. §1630.15(e), App.
    [See]{.underline} [also]{.underline} EEOC Technical Assistance
    Manual for Title I of the ADA at §4.6(1) (emphasis added) (providing
    that "\[t\]he ADA does not override health and safety requirements
    established under [other]{.underline} [Federal]{.underline}
    [laws]{.underline}. If a standard is required by another federal
    law, an employer must comply with it and does not have to show that
    the standard is job-related and consistent with business
    necessity.")

[^33]: In that case, a school bus driver with a lifting restriction had
    requested a transfer into the position of school bus attendant,
    which were used only on "special education" buses, transporting only
    students with disabilities. [Id]{.underline}.

[^34]: Defendants also argue that they were bound to comply with Tenn.
    Code Ann. §38-8-106(9) in order to avoid criminal liability under
    Tenn. Code Ann. §38-8-105. This argument is without merit, as the
    invalidity of a statutory provision renders it a nullity, and there
    can be no liability for failing to comply with a law that doesn't
    exist. In addition, the Supreme Court has made clear that an
    employer cannot be held liable under state law for doing what is
    required under federal employment discrimination laws: "\[W\]e 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.'" [Int'l
    Union, United Auto Workers v. Johnson Controls, Inc.]{.underline},
    499 U.S. 187, 209-10 (1991) (citations omitted).