No. 00-1406 

IN THE 

Supreme Court of the United States 

CHEVRON U.S.A. INC., 

Petitioner, 

v. 

MARIO ECHAZABAL, 

Respondent. _______________________________ 

ON WRIT OF CERTIORARI TO THE 

UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT 

BRIEF OF THE NATIONAL COUNCIL ON

DISABILITY AS AMICUS CURIAE IN

SUPPORT OF RESPONDENT

PETER BLANCK* 

Professor and Director 

LEONARD A. SANDLER 

Clinical Professor 

and Co-Director 

UNIVERSITY OF IOWA COLLEGE 

OF LAW, AND LAW, HEALTH POLICY 

AND DISABILITY CENTER 

431 Boyd Law Bldg. 

University of Iowa 

Iowa City, IA 52242-1113 

(319) 335-9043 

* Counsel of Record 

DIANE KUTZKO 

MARK L. ZAIGER 

DOUGLAS R. OELSCHLAEGER 

SARAH J. GAYER 

SHUTTLEWORTH & INGERSOLL, P.L.C. 

500 Firstar Bank Bldg.

P.O. Box 2107

Cedar Rapids, IA 52406

(319) 365-9461

Counsel for Amicus Curiae 
i 

TABLE OF CONTENTS 

Table of Cited Authorities . . . . . . . . . . . . . . . . . . . . . iii 

Page 

Interest of Amicus Curiae . . . . . . . . . . . . . . . . . . . . . 1 

Statement of the Case . . . . . . . . . . . . . . . . . . . . . . . . 3 

Summary of the Argument . . . . . . . . . . . . . . . . . . . . 4 

Argument . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8 

I. Title I Of The ADA Is Designed 

To Secure Civil Rights For Persons 

With Disabilities Based On Their Abilities 

And Without Regard To Myths And 

Misconceptions About Their Employment 

Capabilities . . . . . . . . . . . . . . . . . . . . . . . . . . 8 

A. The ADA Marked A Watershed In Civil 

Rights For Persons With Disabilities And 

The Abandonment Of The Medical 

Model Of Disability . . . . . . . . . . . . . . . . 8 

B. The Text And Legislative History Of The 

ADA Demonstrate That Eliminating 

Paternalism Was An Overriding Purpose 

Of Congress . . . . . . . . . . . . . . . . . . . . . . 11 

C. Congress Viewed The Exclusion Of 

Individuals With Disabilities Who Pose 

Only A Direct Threat To Themselves As 

An Impermissible Act Of Paternalism . . 14 
ii 

Contents 

Page 

II. Incorporating “Direct Threat” Into The 

Definition Of “Qualified Individual” Would 

Undercut The Structural Integrity And 

Purposes Of The Act . . . . . . . . . . . . . . . . . . . 17 

III. The EEOC’s Regulations Concerning Direct 

Threat To Self Are Not Entitled To Chevron 

Deference . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23 

Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25 
iii 

TABLE OF CITED AUTHORITIES 

Cases: 

Adarand Constructors, Inc. v. Pena, 515 U.S. 200 

(1995) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11 

Page 

Albertsons, Inc. v. Kirkingburg, 527 U.S. 555 (1999) 

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 

Chevron U.S.A., Inc. v. Natural Resources Defense 

Council, Inc., 467 U.S. 837 (1984) . . . . . . . . . . . 23, 24 

Dothard v. Rawlinson, 433 U.S. 321 (1977) . . . . . . 16 

Duncan v. Walker, 121 S. Ct. 2120 (2001) . . . . . . . 22 

E.E.O.C. v. United Parcel Services, Inc., 149 F. Supp. 

2d 1115 (N.D. Cal. 2000) . . . . . . . . . . . . . . . . . . . 21 

EEOC v. Wafflehouse, Inc., No. 99-1823 (S. Ct. Jan. 

15, 2002) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20, 23 

Fox v. Standard Oil Co., 294 U.S. 87 (1935) . . . . . 19 

Frontiero v. Richardson, 411 U.S. 677 (1973) . . . . 11 

International Union v. Johnson Controls, Inc., 499 

U.S. 187 (1991) . . . . . . . . . . . . . . . . . . . . . . . . . . . 16 

LaChance v. Duffy’s Draft House, Inc., 146 F.3d 832 

(11thCir. 1998) . . . . . . . . . . . . . . . . . . . . . . . . . . . 22 

Montclair v. Ramsdell, 107 U.S. 147 (1883) . . . . . . 23 

7 
iv 

Cited Authorities 

Page 

Olmstead v. L.C., 527 U.S. 581 (1999) . . . . . . . . . . 14 

Solid Waste Agency of Northern Cook County v. 

United States Army Corps of Engineers, 531 U.S. 

159 (2001) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23 

Sutton v. United Airlines, 527 U.S. 471 (1999) . . . . 1 

TRW Inc. v. Andrews, 122 S. Ct. 441 (2001) . . . . . . 22 

Turco v. Hoechst Celanese Corp., 101 F.3d 1090 

(5thCir. 1996) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22 

United States v. Mead Corp., 121 S. Ct. 2164 (2001) 

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24 

United States v. Menasche, 348 U.S. 528 (1955) . . 22, 23 

United States v. Shimer, 367 U.S. 374 (1961) . . . . . 24 

Wards Cove Packing Co. v. Atonio, 490 U.S. 642 

(1989) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21 

Statutes: 

29 U.S.C. § 781 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 

42 U.S.C. § 2000e-2(k)(1)(A)(i) . . . . . . . . . . . . . . . 21 

42 U.S.C. § 12101 et seq. . . . . . . . . . . . . . . . . . . . . . 1 

42 U.S.C. § 12101(a)(2) . . . . . . . . . . . . . . . . . . . . . . 10 

42 U.S.C. § 12101(a)(3) . . . . . . . . . . . . . . . . . . . . . . 10 
v 

Cited Authorities 

Page 

42 U.S.C. § 12101(a)(5) . . . . . . . . . . . . . . . . . . .10, 16, 24

42 U.S.C. § 12101(a)(7) . . . . . . . . . . . . . . . . . . . . . . 10

42 U.S.C. § 12101(a)(9) . . . . . . . . . . . . . . . . . . . . . . 5, 11

42 U.S.C. § 12111(3) . . . . . . . . . . . . . . . . . . . . . . . 6, 23, 24

42 U.S.C. § 12111(8) . . . . . . . . . . . . . . . . 5, 17, 18, 19, 22

42 U.S.C. § 12112(a) . . . . . . . . . . . . . . . . . . . . . . . . . 5, 17

42 U.S.C. § 12112(b)(5)(A) . . . . . . . . . . . . . . . . . . . 19

42 U.S.C. § 12112(b)(6) . . . . . . . . . . . . . . . . . . . . . . 19, 21

42 U.S.C. § 12113(a) . . . . . . . . . . . . . . . . . . . .5, 19, 20, 21

42 U.S.C. § 12113(b) . . . . . . . . . . . . . . . . . . . . . . 5, 19, 20

Other Authorities: 

29 C.F.R. § 1630, App. § 1630(2)(n) (2001) . . . . . . 18, 20

29 C.F.R. § 1630.2(n)(1) (2001) . . . . . . . . . . . . . . . . 18

29 C.F.R. § 1630.2(q) (2001) . . . . . . . . . . . . . . . . . . 20

29 C.F.R. § 1630.2(r) (2001) . . . . . . . . . . . . . . . . . . 6

29 C.F.R. § 1630.15(b)(2) (2001) . . . . . . . . . . . . . . . 6
vi 

Cited Authorities 

Page 

134 Cong. Rec. S5090-02 (daily ed. April 28, 1988) 

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15 

135 Cong. Rec. S4979-02 (daily ed. May 9, 1989) . . 12 

135 Cong. Rec. S10701-04 (daily ed. Sept. 7, 1989) 

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15 

136 Cong. Rec. E1656-02 (daily ed. May 22, 1990) 

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 

136 Cong. Rec. E1913-01 (daily ed. June 13, 1990) 

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15 

136 Cong. Rec. H1920-04 (daily ed. May 1, 1990) 

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16 

136 Cong. Rec. H2421-02 (daily ed. May 17, 1990) 

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16 

136 Cong. Rec. H2599-01 (daily ed. May 22, 1990) 

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15 

136 Cong. Rec. H4614-02 (daily ed. July 12, 1990) 

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .11, 13, 15, 16 

136 Cong. Rec. S9680-01 (daily ed. July 13, 1990) 

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11 

136 Cong. Rec. S9684-03 (daily ed. July 13, 1990) 

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15 

8 
vii 

Cited Authorities 

Page 

H.R. Rep. No. 485, reprinted in 1990 U.S.C.C.A.N. 

303 . . . . . . . . . . . . . . . . 1, 4, 5, 7, 11, 12, 15, 16, 18, 21 

H.R. Rep. No. 596 (1990) . . . . . . . . . . . . . . . . . . . . . 16 

S. Rep. No. 101-116 (1989) . . . . . . . . . . . . . . . . . . . 21 

S. Rep. No. 357 (1992), reprinted in 1992 

U.S.C.C.A.N. 3712 . . . . . . . . . . . . . . . . . . . . . . . . 12 

Nicholas A. Ashford et al., Monitoring the Worker 

for Exposure and Disease 71 (1990) . . . . . . . . . . 13 

Peter Blanck & Michael Millender, Before Disability 

Rights: Civil War Pensions and the Politics of 

Disability in America, 52 Ala. L. Rev. 1 (2000) . . . 9, 10 

Peter David Blanck & Glenn Pransky, Workers with 

Disabilities, 14 Occupational Medicine: State of 

the Art Reviews 581 (1999) . . . . . . . . . . . . . . . . . 22 

Edward J. Calabrese, Pollutants in High-Risk 

Groups: the Biological Basis of Increased Human 

Susceptibility to Environmental and Occupational 

Pollutants 192 (1978) . . . . . . . . . . . . . . . . . . . . . . 14 

Ann Hubbard, Understanding and Implementing the 

ADA’s Direct Threat Defense, 95 Nw. U. L. Rev. 

1279 (2001) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21 

Merriam-Webster’s Collegiate Dictionary 851 (10th 

ed. 1993) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11 
viii 

Cited Authorities 

Page 

Promises To Keep: A Decade of Enforcement of the 

Americans with Disabilities Act (2000) . . . . . . . . 25 

Joseph Shapiro, No Pity: People with Disabilities 

Forging a New Civil Rights Movement 41 (1993) 

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 

Toward Independence (1986), cited in 135 Cong. 

Rec. S10765-01 (daily ed. Sept. 7, 1989) . . . . . . 2, 5 

Webster’s Encyclopedic Unabridged Dictionary of 

the English Language 1056 (1994) . . . . . . . . . . . 11 

9 
1 

INTEREST OF AMICUS CURIAE1 

The National Council on Disability (NCD), as this Court 

has recognized, provided the founding vision and the initial 

framework for the Americans with Disabilities Act of 1990, 

42 U.S.C. § 12101 et seq. (“ADA” or “the Act”).2 For more 

than two decades, the NCD has monitored and evaluated the 

state of America’s disability-related civil rights laws and policies 

through research, town meetings, and intergovernmental 

collaboration. 

Formerly the National Council on the Handicapped, the 

NCD is an independent federal agency composed of 15 members 

appointed by the President and confirmed by the Senate. It is 

charged by statute with reviewing federal laws, regulations, 

programs, and policies affecting people with disabilities. It is 

also required by law to make recommendations to the President, 

the Congress, and other federal officials and entities regarding 

ways to promote equal opportunity, economic self-sufficiency, 

inclusion and integration into all aspects of society for Americans 

with disabilities. 29 U.S.C. § 781 (1994). 

The NCD was instrumental in creating the legislative record 

that Congress considered when deliberating the ADA, and it 

played a pivotal role in the passage of that landmark civil rights 

law. See H.R. Rep. No. 485, pt. 2, at 30-31, 34, reprinted in 

1990 U.S.C.C.A.N. 303, 312, 316. Guided and informed by 

1. The parties have consented to the filing of this brief. Letters of 

consent were lodged with the Clerk of Court on January 22, 2002. 

The following brief was not authored, in whole or in part, by counsel 

for either party. No person or entity, other than the amicus curiae, its 

members and counsel, contributed monetarily to the preparation or 

submission of the brief. 

2. See Sutton v. United Airlines, 527 U.S. 471, 484-85 (1999); 

see also H.R. Rep. No. 485, pt. 2, at 28 (1990), reprinted in 1990 

U.S.C.C.A.N. 303, 310. 
2 

this unique mandate and perspective, the NCD submits this brief 

amicus curiae. 

The NCD is pledged to support the letter and the spirit of 

the ADA and to preserve the integrity and bedrock principles of 

the law. 3 Prominent among these are the equal opportunity and 

self-determination of persons with disabilities. Here, this Court 

is being asked to allow employers to shut the door on qualified 

individuals with disabilities who employers believe might be 

harmed by exposure to a workplace environment. 

In this case, petitioner Chevron seeks to accomplish that 

goal by relying on a “direct threat to self” defense to 

discrimination charges created by the Equal Employment 

Opportunity Commission (“EEOC”). Such a defense is found 

nowhere in the language of the Act, is directly contrary to a 

plain and natural reading of the Act, and is inconsistent with 

the clearly expressed intent of Congress. The EEOC’s position 

gives employers the right to decide the degree of risk an 

individual with a disability can and should accept in performing 

his or her job. The defense essentially would allow employers 

unilaterally to bar or dismiss from jobs qualified workers who 

do not pose a health or safety risk to others, but perhaps only to 

themselves. Moreover, as in Mr. Echazabal’s case, this 

determination is based on speculative and, at best, probabilistic 

medical criteria. The result is to endorse the unjustified 

paternalism and stereotyping that Congress expressly sought to 

eliminate. 

3. Consistent with that role, NCD published its report to the 

President of the United States and Congress, Toward Independence 

(1986), cited in 135 Cong. Rec. S10765-01, S10790 (daily ed. Sept. 7, 

1989) (The NCD report “concluded that the major obstacles facing people 

with disabilities are not their specific individual disabilities but rather 

the artificial barrier imposed by others.”) (Statement of Sen. Dole). 
3 

STATEMENT OF THE CASE 

Mario Echazabal worked at Chevron’s El Segundo, 

California oil refinery for some 20 years. During this time, 

he worked as a laborer, helper, and pipefitter for various 

maintenance contractors, primarily in the coker unit. 

Joint Appendix 10 (hereinafter “J.A.”). In 1992 Echazabal 

applied to work directly for Chevron at the refinery’s coker unit 

as a pipefitter/mechanic. He again applied in 1995 for the 

position of plant helper. J.A. 172-73. On both occasions, 

Chevron determined that he was qualified for the job and 

could perform its essential functions. Chevron extended 

Echazabal a job offer contingent on his passing a physical 

examination. J.A. 55, 172-73. 

After examination and review, Chevron’s physician 

concluded that Echazabal should not be exposed to the solvents 

and chemicals in the refinery, even though Echazabal’s 

own physician stated he had “no limitations.” J.A. 95. Chevron’s 

decision was based on a medical assessment of Echazabal’s 

chronic liver condition, diagnosed as Hepatitis C. J.A. 96-97. 

In 1996, prior to the phone conversation that took place between 

Echazabal’s physician, Dr. Weingarten, and Chevron’s 

Dr. McGill, and after turning him down for the second time, 

Chevron wrote to Irwin Industries, Echazabal’s employer at the 

refinery. Chevron demanded that Irwin immediately remove 

Echazabal from the refinery or place him in a position that 

eliminated his exposure to solvents/chemicals. J.A. 57-58. 

This action was taken even though Echazabal’s hepatitis never 

caused injury or accident to himself or anyone else at the refinery. 

Chevron refused to hire Echazabal and barred him from 

working as a plant helper at the refinery. 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 (which was removed to federal court) 
4 

alleging, among other claims, discrimination on the basis of a 

disability in violation of the ADA. 

The district court granted summary judgment in favor of 

Chevron. The Ninth Circuit reversed, holding that the direct 

threat defense contained in the ADA does not permit employers 

to exclude from employment qualified individuals with 

disabilities who pose a risk only to themselves and not others; 

and that the risk that Echazabal poses to his own health does 

not affect whether he is a qualified individual for purposes of 

the Act. Echazabal v. Chevron USA, Inc., 226 F.3d 1063, 1072 

(9th Cir. 2000). This Court granted Chevron’s petition for 

certiorari. 

SUMMARY OF THE ARGUMENT 

Encountering risk is an element of everyday life experience. 

Assessing and accepting risk are basic elements of personal 

independence and the exercise of adult responsibility. Congress 

understood that and acknowledged in the ADA that 

discrimination takes many forms, including paternalism and 

stereotyping. See H.R. Rep. 485, pt. 2, at 74 (1990), reprinted 

in 1990 U.S.C.C.A.N. 303, 356. Perhaps the most long-standing 

and insidious aspect of this type of discrimination is the 

assumption that people with disabilities are not competent to 

make informed, wise, or safe life choices. This myth is most 

apparent and damaging in the employment context. 

In its 1986 report to the President and the Congress, upon 

which Congress relied in its consideration and passage of the 

ADA, NCD recognized the importance of access to employment 

as key to the independence of individuals with disabilities: 

As for most other Americans, a major prerequisite 

to economic self-sufficiency for individuals with 

disabilities is a job. Employment is an essential 
5 

key to successful adult integration into community 

life. Various forms of work are associated with 

greater independence, productivity, social status, 

and financial security. Success and quality of life 

are often measured in terms of paid employment. 

See National Council on the Handicapped, Toward 

Independence 18-21 (1986). 

In part in response to these concerns, Congress passed the 

ADA and set forth findings about the pervasive nature of 

discrimination against persons with disabilities. These findings 

included discrimination resulting from over-protective rules and 

policies, as well as intentional discrimination that relegated 

individuals with disabilities to lesser and inferior jobs and 

foreclosed their employment opportunities. H.R. Rep. No. 485, 

pt. 2, at 28-29 (1990), reprinted in 1990 U.S.C.C.A.N. 303, 

310-11. The resultant loss to this nation in economic productivity 

was estimated to be in the billions of dollars. 42 U.S.C. 

§ 12101(a)(9). 

Consistent with Congress’s findings, Title I of the ADA 

prohibits discrimination against a “qualified individual with a 

disability” on the basis of myths, stereotypes, and misperceptions 

about job capabilities. 42 U.S.C. § 12112(a). The ADA defines 

a “qualified individual with a disability” as a person with a 

disability “who, with or without reasonable accommodation, 

can perform the essential functions” of the job. 42 U.S.C. 

§ 12111(8). 

Title I permits certain employer defenses based on 

qualification standards that are “job-related” and “consistent 

with business necessity.” 42 U.S.C. § 12113(a). Those defenses 

include the requirement that an employee not pose a “direct 

threat to the health or safety of other individuals in the 

workplace.” 42 U.S.C. § 12113(b). “Direct threat” is defined as 
6 

“a significant risk to the health or safety of others that 

cannot be eliminated by reasonable accommodation.” 42 U.S.C. 

§ 12111(3). Nowhere in the Act is “direct threat” defined or 

referred to as a risk to self. In fact, there is not a single reference 

in the Act or the legislative history denoting that a threat to the 

disabled employee himself is a defense for the employer to refuse 

to hire the employee. 

Nevertheless, the EEOC issued regulations that expanded 

the definition and defense of “direct threat” beyond the explicit 

language of the ADA. The EEOC regulations define direct threat 

to mean “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.” 29 C.F.R. § 1630.2(r) 

(2001) (emphasis added). Moreover, the regulations provide 

that “[t]he 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) (2001). 

The EEOC’s interpretation is fundamentally inconsistent 

with the text and purpose of the statute. Congress could easily 

have used the phrase “direct threat to the health or safety of the 

individual or other individuals in the workplace,” but it did not. 

That omission cannot be viewed as an oversight, given the 

fundamental importance of this phrasing in accomplishing the 

goals of the statute. 

The EEOC’s strained interpretation of the direct threat 

defense to include risk to self undermines the ADA’s primary 

principle. Congress recognized that employer assessment of the 

risk to the employee historically served as a reason for the 

unwarranted exclusion — well meaning or otherwise — of 

qualified individuals from work. The Act was drafted to leave 

the assessment of personal risk to the employee in consultation 

with his or her treating physician. The employer was prohibited 
7 

from considering the effect on health or safety, unless and until 

the individual’s condition or behavior imperils the health or 

safety of others in the workplace, or the individual fails to meet 

specific health or safety standards imposed by federal authorities. 

See Albertsons, Inc. v. Kirkingburg, 527 U.S. 555 (1999). 

Congress treated the effect of federal standards differently 

because they were more likely to be general standards applicable 

to all individuals and, therefore, not based on a paternalistic 

protection of disabled persons. On the other hand, in the context 

of private employers’ evaluations, Congress recognized that such 

considerations are a form of paternalism that can pose 

insurmountable barriers to employment. See H.R. Rep. No. 485, 

pt. 2, at 74 (1990), reprinted in 1990 U.S.C.C.A.N. 303, 356. 

Mario Echazabal dramatically exemplifies the situation the 

ADA was intended to prevent and the harm that results from 

the application of the EEOC’s expanded notion of direct threat. 

Echazabal successfully performed the essential functions of 

various jobs in Chevron’s refinery coker unit for some twenty 

years without accident or injury to himself or anybody else. 

Echazabal was capable of making independent and 

informed decisions about his employment and medical 

treatment. Record evidence establishes that Echazabal continued 

to work in the coker unit at the refinery with full knowledge of 

his medical condition and of the chemicals and solvents to which 

he was exposed, and he did so in consultation with his treating 

physicians. Chevron was fully apprised and aware of Echazabal’s 

health status during these years, through the repeated 

appointments and evaluations conducted at the Chevron refinery 

clinic while Echazabal continued to work amidst the hepatoxins. 

Chevron is attempting to use the EEOC’s rule to override 

Echazabal’s personal decision to continue his day-to-day job 

activities, because the company, rather than the employee, 

believes that any exposure to liver toxic chemicals is 

unacceptable to it. J.A. 32. This action is contrary to the language 

and intent of the Act. 
8 

The Act is carefully calibrated to balance the interests of 

employers and individuals with disabilities, and it requires that 

issues be addressed in an ordered and tiered sequence. 

The threshold determination is whether an individual is qualified 

to perform the job, with or without reasonable accommodations. 

Then and only then can the defense of direct threat to others be 

evaluated. 

Congress chose to draft the definition of “direct threat” 

narrowly. Where Congress has spoken clearly, as here, the natural 

and direct meaning of the Act controls over any interpretation 

placed on it by an administrative agency. The EEOC regulations 

extending the direct threat defense to individuals who pose a 

substantial health or safety risk to themselves accordingly are 

not entitled to Chevron deference. For these reasons, the Ninth 

Circuit’s decision should be affirmed. 

ARGUMENT 

I. TITLE I OF THE ADA IS DESIGNED TO 

SECURE CIVIL RIGHTS FOR PERSONS 

WITH DISABILITIES BASED ON THEIR 

ABILITIES AND WITHOUT REGARD TO MYTHS 

AND MISCONCEPTIONS ABOUT THEIR EMPLOYMENT CAPABILITIES 

A. The ADA Marked A Watershed In Civil Rights For 

Persons With Disabilities And The Abandonment Of 

The Medical Model Of Disability 

By enacting the ADA, Congress committed the federal 

government to the protection of the civil rights of individuals 

with disabilities, and abandoned a prior focus on social programs 

that tended to isolate those individuals. 136 Cong. Rec. E1656-

02, E1656 (daily ed. May 22, 1990) (“I agree with the National 

Council on Disability in its belief that the provisions of this 
9 

legislation send persons with disabilities a clear message that 

their dream of equal civil rights protections will soon become a 

reality”) (Statement of Rep. Gingrich). 

The ADA’s civil rights model was founded on the principle 

that individuals with disabilities are a minority group entitled 

to the same hard-won legal protections as African-Americans 

and women. It supplanted the “medical model” that focused on 

the individual, whose disability was conceived as an infirmity 

that precluded full participation in the economy and in society. 

The medical model posited that government should direct 

resources to rehabilitation programs that would assist 

“the handicapped” to overcome their impairments. See Peter 

Blanck & Michael Millender, Before Disability Rights: Civil 

War Pensions and the Politics of Disability in America, 52 Ala. 

L. Rev. 1, 2-3 (2000). The medical model also relegated people 

with disabilities to a subordinate role in their encounters with 

physicians, employers, and others who aimed to help the disabled 

adjust to a society structured around the convenience and outlook 

of the non-disabled. Id. at 2. 

Because the medical model never questioned the physical 

and social environment in which disabled people were 

forced to function, it countenanced their segregation and 

marginalization. And, because it aimed to address the “needs” 

of the disabled rather than to recognize their civil rights, the 

medical model led to governmental policies that viewed 

assistance for the disabled as a species of welfare. See generally 

Joseph Shapiro, No Pity: People with Disabilities Forging a 

New Civil Rights Movement 41-64 (1993). 

By contrast, the civil rights model that began to influence 

government policy in the 1970s proposes that disability is a 

social and cultural construct. The civil rights model focuses on 

the laws and practices that subordinate disabled persons and 

insists that government must secure the equality of disabled 
10 

persons by eliminating the legal, physical, economic, and 

paternalistic barriers that preclude their full involvement in 

society. See Peter Blanck & Michael Millender, Before Disability 

Rights: Civil War Pensions and the Politics of Disability in 

America, 52 Ala. L. Rev. 1, 3 (2000). 

The paternalism that the ADA was designed to counteract 

was chronicled by Congress in the Act’s findings and purposes: 

• In the past, “society has tended to isolate and 

segregate individuals with disabilities.” 42 U.S.C. 

§ 12101(a)(2). 

• Discrimination against individuals with disabilities 

“persists in such critical areas as employment .. .” 

42 U.S.C. § 12101(a)(3). 

• Individuals with disabilities “continually encounter 

various forms of discrimination,” “overprotective 

rules and policies,” as well as “outright intentional 

exclusion.” 42 U.S.C. § 12101(a)(5). 

• Individuals with disabilities are often relegated to 

“lesser . . . jobs.” 42 U.S.C. § 12101(a)(5). 

• Individuals with disabilities have been reduced to 

a “position of political powerlessness in our society 

. . . resulting from stereotypic assumptions not 

truly indicative of the individual ability of such 

individuals to participate in, and contribute to, 

society.” 42 U.S.C. § 12101(a)(7). The “continuing 

existence of unfair and unnecessary discrimination 

and prejudice denies people with disabilities the 

opportunity to compete on an equal basis . . . and 
11 

costs the United States billions of dollars in 

unnecessary expenses resulting from dependency 

and non-productivity.” 42 U.S.C. § 12101(a)(9). 

The integrity of these findings and purposes is potentially 

compromised by the EEOC regulations at issue in this case. 

B. The Text And Legislative History Of The ADA 

Demonstrate That Eliminating Paternalism Was An 

Overriding Purpose Of Congress 

The legislative history identified “paternalism”4 and targeted 

it for elimination as “perhaps the most pervasive form of 

discrimination for people with disabilities.” H.R. Rep. No. 485, 

pt. 2, at 74 (1990), reprinted in 1990 U.S.C.C.A.N. 303, 356; 

see also 136 Cong. Rec. H4614-02, H4623 (daily ed. July 12, 

1990); 136 Cong. Rec. S9680-01, S9680 (daily ed. July 13, 

1990); H.R. Rep. No. 485, pt. 3, at 42 (1990), reprinted in 1990 

U.S.C.C.A.N. 445, 465. Eliminating paternalism goes hand in 

hand with ensuring equal opportunity and full participation for 

disabled individuals in the workplace.5 The Senate Committee 

4. See Webster’s Encyclopedic Unabridged Dictionary of the 

English Language 1056 (1994) (defining paternalism as “the system, 

principle, or practice of managing or governing individuals, businesses, 

nations, etc. in the manner of a father dealing with his children: 

The employees objected to the paternalism of the old president”); 

Merriam-Webster’s Collegiate Dictionary 851 (10thed. 1993) (defining 

paternalism as “a system under which an authority undertakes to supply 

needs or regulate conduct of those under its control in matters affecting 

them as individuals as well as in their relations to authority and to each 

other”). 

5. See Adarand Constructors, Inc. v. Pena, 515 U.S. 200, 240 

(1995) (“There can be no doubt that the paternalism that appears to lie 

at the heart of this program is at war with the principle of inherent equality 

that underlies and infuses our Constitution.”) (Thomas, J., concurring); 

Frontiero v. Richardson, 411 U.S. 677, 684 (1973) (explaining that sex 

discrimination “was rationalized by an attitude of ‘romantic paternalism’ 

which, in practical effect, put women, not on a pedestal, but in a cage”). 
12 

on Labor and Human Resources acknowledged: “[T]he values 

and principles underpinning the ADA . . . include the right of 

persons with disabilities to independence, inclusion, choice and 

self-determination, and access . . . and respect for individual 

differences.” S. Rep. No. 357, at 7 (1992), reprinted in 1992 

U.S.C.C.A.N. 3712, 3718. 

A central tenet of the ADA is that people are to be “judged 

as individuals on the basis of their abilities and not on the basis 

of presumptions, generalizations, misperceptions, ignorance, 

irrational fears, patronizing attitudes, or pernicious 

mythologies.” 135 Cong. Rec. S4979-02, S4984 (daily ed. 

May 9, 1989) (Statement of Sen. Harkin); see also H.R. Rep. 

No. 485, pt. 2, at 58 (1990), reprinted in 1990 U.S.C.C.A.N. 

303, 340; H.R. Rep. No. 485, pt. 3, at 45 (1990), reprinted in 

1990 U.S.C.C.A.N. 445, 468. That core theme was reinforced 

in committee reports and proceedings. “[I]t would be a violation 

of this legislation if an employer were to limit the duties of an 

individual with a disability based on a presumption of what 

was best for such individual or based on a presumption about 

the ability of that individual to perform certain tasks.” H.R. Rep. 

No. 485, pt. 2, at 58 (1990), reprinted in 1990 U.S.C.C.A.N. 

303, 340. 

Mario Echazabal is a qualified worker within the meaning 

of the ADA who successfully performed the various jobs he 

held at the refinery. J.A. 10. For twenty years, he worked in 

close proximity to the very solvents and chemicals about which 

Chevron is now concerned. He was fully able to evaluate and 

appreciate the risks posed by the refinery jobs and made 

informed choices about whether or not to accept those risks. 

J.A. 10, 11, 32. Chevron, moreover, has not cited to any hepatitisrelated workers’ compensation or other workplace accident or 

injury claim filed by Echazabal during this time period. 
13 

None of Chevron’s physicians was willing or able to 

calculate or quantify the risk of harm that might befall Echazabal 

at any time in the future. They were aware only that sooner or 

later his working at the refinery could possibly damage his liver. 

J.A. 56. Chevron defended its decision not to hire Echazabal 

based on the claim that any risk to Echazabal, no matter how 

far in the future and how speculative, would be unacceptable in 

light of the company’s aversion to risk.6 

Reliance on a medical opinion that is based on future 

possibilities, and that seeks to “protect” an individual such as 

Echazabal from himself, is precisely what Congress intended 

to prevent.7 See, e.g., 136 Cong. Rec. H4614-02, H4623 (daily 

ed. July 12, 1990). 

Thus, an employer could not use as an excuse for 

not hiring a person with HIV disease the claim 

that the employer was simply protecting the 

individual from opportunistic diseases to which 

the individual might be exposed. That is a concern 

on which the individual should consult with his 

or her private physician and make decisions 

accordingly. 

(Statement of Rep. Owens).8 

6. In testimony concerning the risk that an individual in Echazabal’s 

position and health would encounter, one of Chevron’s evaluating 

physicians testified that “[a]ny level above one percent is high for me 

when it’s a person’s life.” J.A. 88. That same physician testified, without 

regard to Echazabal’s own decisionmaking capacities, “I just don’t want 

this individual to be exposed to hepatoxins.” J.A. 91. 

7. Because there is no restriction on the scope of post-offer medical 

examinations or inquiries, these examinations may screen for conditions, 

susceptibilities, or sensitivities, that may predispose an applicant to an 

increased risk of harm in the future if exposed to a particular substance 

or work environment. See Nicholas A. Ashford et al., Monitoring the 

Worker for Exposure and Disease 71 (1990). 

8. With advances in medical technology, including genetic 

(Cont’d) 
14 

A regulation or policy that denies disabled employees the 

right to decide whether or not to accept the risks posed by a job 

would embed into law the notion that all individuals with a 

disability are incapable of engaging in basic decisionmaking. 

See generally Olmstead v. L.C., 527 U.S. 581, 600 (1999) 

(explaining that unjustified institutional placement of disabled 

individuals perpetuates stereotypes regarding individual choice). 

C. Congress Viewed The Exclusion Of Individuals With 

Disabilities Who Pose Only A Direct Threat To 

Themselves As An Impermissible Act Of Paternalism 

Both chambers of Congress recognized that extending the 

direct threat defense to employees who posed a direct threat 

only to themselves was an act of entrenched paternalism. Senator 

Kennedy stated: 

It is important, however, that the ADA specifically 

refers to health and safety threats to others. Under 

the ADA, employers may not deny a person an 

employment opportunity based on paternalistic 

concerns regarding the person’s health. 

For example, an employer could not use as an 

excuse for not hiring a person with HIV disease 

the claim that the employer was simply ‘protecting 

the individual’ from opportunistic diseases to 

which the individual might be exposed. That is a 

(Cont’d) 

screening, there is the potential for excluding large numbers of presymptomatic individuals — “the healthy ill” — on the basis of potential 

health or safety risks to themselves in the future. As one commentator 

suggested, the problem with the use of genetic testing to exclude workers 

is that “an individual’s risk of injury or illness from exposure can be 

elevated relative to the average because of genetic inheritance, because 

of acquired characteristics, or . . . because of a combination of genetic 

and environmental influences.” Edward J. Calabrese, Pollutants in HighRisk Groups: the Biological Basis of Increased Human Susceptibility to 

Environmental and Occupational Pollutants 192 (1978). 
15 

concern that should rightfully be dealt with by the 

individual, in consultation with his or her private 

physician. 

136 Cong. Rec. S9684-03, S9697 (daily ed. July 13, 1990) 

(emphasis added); see also 136 Cong. Rec. H4614-02, H4623 

(daily ed. July 12, 1990) (expressing the same concern in 

almost identical language). 

Congress vested individuals with disabilities with the power 

to decide whether or not to apply for or keep working at jobs 

that pose risks only to themselves, so long as they meet externally 

imposed governmental qualifications and health and safety 

standards. Employers were granted the authority to reject 

applicants and employees who pose a substantial risk of harm 

to others in the workplace.9 

9. When first introduced, the ADA did not contain a direct threat 

defense. 134 Cong. Rec. S5090-02 (daily ed. April 28, 1988). 

When the Act was reintroduced in 1989, Congress added a direct threat 

defense to “allay any concerns” that the Act would require employers to 

“hire or retain employees who posed a significant risk to others.” 

136 Cong. Rec. E1913-01, E1915 (daily ed. June 13, 1990); see also 

136 Cong. Rec. H2599-01, H2623-24 (daily ed. May 22, 1990); 

136 Cong. Rec. S9684-03, S9686 (daily ed. July 13, 1990). 

In its initial form, the direct threat defense applied only to 

individuals who had a “currently contagious disease or infection.” 

135 Cong. Rec. S10701-04, S10703 (daily ed. Sept. 7, 1989). During 

consideration by the Committee on the Judiciary, although the defense 

was extended to all individuals with disabilities (H.R. Rep. No. 485, 

pt. 3, at 23 (1990), reprinted in 1990 U.S.C.C.A.N. 445, 446), the 

Committee made the defense more difficult to establish by adding a 

definitional section imposing both a significant risk requirement and a 

reasonable accommodation requirement: “The term ‘direct threat’ 

means a significant risk to the health or safety of others that cannot be 

eliminated by reasonable accommodation.” H.R. Rep. 485, pt. 3, at 34 

(1990), reprinted in 1990 U.S.C.C.A.N. 445, 457. According to the 

(Cont’d) 
16 

Chevron’s conduct may appear on the surface to be less 

egregious than overt acts of intentional exclusion based on 

disability. But Chevron and its doctors did not engage in the 

interactive process contemplated by the ADA or assist Echazabal 

in weighing the pros and cons of his continuing to work around 

solvents in the refinery. Most important, they took it upon 

themselves to dictate what was best for him, excluding him 

from the dialogue and decision. Chevron’s professed motivation 

was to avoid liability and to mitigate any costs associated with 

the risk of injury. See Brief of Petitioner at 23-28. In the end, 

Chevron’s actions threatened Echazabal’s livelihood. 

This approach is emblematic of the negative attitudes and 

discriminatory employer conduct that the ADA proscribes. 

42 U.S.C. § 12101(a)(5).10 

(Cont’d) 

Committee’s Report, this definition was intended to “codify the direct 

threat standard used by the Supreme Court in School Board of Nassau 

County v. Arline.” Id. 

Consistent with the purpose of the “direct threat” defense, the 

legislative history is replete with descriptions of the defense as applying 

only to employees that pose a risk to other individuals. 

See 136 Cong. Rec. H1920-04, H1921 (daily ed. May 1, 1990); 136 

Cong. Rec. H2421-02, H2449 (daily ed. May 17, 1990); 136 Cong. 

Rec. H4614-02, H4617 (daily ed. July 12, 1990); H.R. Rep. No. 485, 

pt. 3, at 34, 45-46 (1990), reprinted in 1990 U.S.C.C.A.N 445, 457, 

468-69; H.R. Rep. No. 596, at 57 (1990). Cf. H.R. Rep. No. 485, 

pt. 2, at 56 (1990), reprinted in 1990 U.S.C.C.A.N. 303, 338 (“It is also 

acceptable to deny employment to an applicant or to fire an employee 

with a disability on the basis that the individual poses a direct threat to 

the health or safety of others or poses a direct threat to property.”). 

10. See International Union v. Johnson Controls, Inc., 499 U.S. 

187, 211 (1991) (“It is no more appropriate for the courts than it is for 

individual employers to decide whether a woman’s reproductive role is 

more important to herself and her family than her economic role.”); 

Dothard v. Rawlinson, 433 U.S. 321, 335 (1977) (“In 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.”). 
17

II. INCORPORATING “DIRECT THREAT” INTO THE 

DEFINITION OF “QUALIFIED INDIVIDUAL” 

WOULD UNDERCUT THE STRUCTURAL INTEGRITY AND PURPOSES OF THE ACT 

Congress crafted the Act to calibrate and balance the 

interests of employers and individuals with disabilities. It did 

so by creating a structured and tiered analysis that must proceed 

in an ordered sequence. Once a determination is made that an 

individual has a disability, a determination must be made as to 

whether or not the individual is qualified to perform the duties 

of the job applied for or held, with or without reasonable 

accommodations. Then, and only then, can the employer defense 

of direct threat to others be evaluated. 

The first question in the sequence is whether or not a person 

is “a qualified individual with a disability.” 42 U.S.C. § 12112(a). 

That term means “a person who, with or without reasonable 

accommodation, can perform the essential functions of the 

employment position.” 42 U.S.C. § 12111(8). There are three 

embedded considerations: (1) whether the individual 

has a “disability;” (2) whether the person can perform the 

“essential functions” of the job; and (3) whether reasonable 

accommodations are possible. 

Congress constructed with meticulous care and phrased in 

the present tense the definition of a “qualified individual with a 

disability.” The statutory definition is written in the present tense 

— an individual who can perform the essential functions — to 

denote that present ability, not future ability, to perform the job 

is the primary, if not exclusive, consideration. 42 U.S.C. 

§ 12111(8). The decision about whether an individual is qualified 

must be made “at the time of the job action in question; the 

possibility of future incapacity does not by itself render the 
18 

person not qualified.” H.R. Rep. No. 485, pt. 2, at 55 (1990), 

reprinted in 1990 U.S.C.C.A.N. 303, 337. 11 

The intention of Congress with respect to the term “essential 

functions” is equally clear. “Essential functions” are those 

“job tasks that are fundamental and not marginal.” H.R. Rep. 

No. 485, pt. 2, at 55 (1990), reprinted in 1990 U.S.C.C.A.N. 

303, 337 (emphasis added); see also 29 C.F.R. § 1630.2(n)(1) 

(2001). Consideration is afforded the employer’s judgment as 

to those job tasks that are essential. 42 U.S.C. § 12111(8). 

The EEOC’s interpretive guidance notes that “the inquiry into 

essential functions is not intended to second guess an employer’s 

business judgment with regard to production standards, 

whether qualitative or quantitative . . .” 29 C.F.R. § 1630, 

App. § 1630(2)(n) (2001). 

The House Report also signaled that ability is the central 

focus at this stage. 

The ADA adopts a framework for employment 

selection procedures which is designed to assure 

that persons with disabilities are not excluded 

from job opportunities unless they are actually 

unable to do the job . The requirement that job 

criteria actually measure the ability required 

by the job is a critical protection against 

discrimination based on disability. 

H.R. Rep. No. 485, pt. 2, at 71 (1990), reprinted in 1990 

U.S.C.C.A.N. 303, 353 (emphasis added). 

11. In this case, timing alone demonstrates that respondent is a 

“qualified individual with a disability.” After having worked at the 

Chevron facility for twenty years without incident, he can certainly now 

“tolerate” chemical exposure even if, ultimately, he will not be able to 

continue to do so. 
19 

Nothing in the Act, its legislative history, or regulations, 

accordingly, suggests that health and safety factors are part and 

parcel of whether or not a person is a “qualified individual” 

under 42 U.S.C. § 12111(8). 

The ADA incorporates several employer defenses to a 

charge of discrimination against a qualified individual with a 

disability. One is that a proposed workplace accommodation 

imposes an “undue hardship” on the business. 42 U.S.C. 

§ 12112(b)(5)(A). Another is that the applicant does not meet 

qualification standards and selection criteria that are 

“job-related” and “consistent with business necessity.” 42 U.S.C. 

§ 12112(b)(6); 42 U.S.C. § 12113(a). The direct threat to others 

defense is a subset of the qualifications defense, specifically 

carved out by Congress to meet the health and safety aspects of 

the more general defense. 42 U.S.C. § 12113(a-b). 

Despite the structure of the Act, Chevron urges that an 

individual with a disability who poses a “threat to self” cannot 

be considered “qualified” under the ADA. This argument 

mistakenly injects the everyday meaning of the word “qualified” 

into a tiered, structured, and defined statutory analysis. 

This Court has stated in Fox v. Standard Oil Co., 294 U.S. 87 

(1935) (Cardozo, J.), that a legislative choice of a definition 

that defines terms more narrowly, or with more precision, 

prevails over common understanding or usage. 

Chevron also contends that Echazabal’s ability to perform the 

functions of the job “safely” is an essential function of the position. 

Brief of Petitioner at 46. Amici for Chevron urge this Court to 

defer to Chevron’s characterization that Echazabal be able to 

“tolerate” certain chemicals as an essential function of the plant 

helper job. See, e.g., Brief of Amicus Chamber of Commerce at 8, 

9. However, the legislative history that speaks to the focus of “job 

tasks” and the ability to “do” the job provides no support for 

incorporating a health and safety analysis into the question 

of whether a person is a qualified individual with a disability. 
20 

Adhering faithfully to the statutory sequence is critical. 

Chevron’s arguments skew the analytical framework of the Act 

without compelling reason and contradict the literal and natural 

reading of the Act. See EEOC v. Wafflehouse, Inc., No. 99-1823, 

slip op. (S. Ct. Jan. 15, 2002) (a statute must be given its “natural 

reading”). Under the ADA, health and safety concerns are 

reviewed in the context of employer defenses (and, specifically, 

the direct threat to others defense). These concerns are not an 

appropriate part of the analysis of whether a person is a “qualified 

individual with a disability.” 

As an articulated aspect of an employer’s defenses 

(42 U.S.C. § 12113(a), (b)), health and safety issues can and 

must be considered. See 29 C.F.R. § 1630.2(q) (2001) (stating 

that qualification standards include “personal and professional 

attributes including skill, experience, education, physical, 

medical, safety and other requirements” necessary for an 

individual to be eligible for the position). As such, health and 

safety standards form “qualification standards” or “selection 

criteria” and are properly considered only in the context of the 

“defense” requirements under 42 U.S.C. § 12113(a). 

Health and safety considerations are a critical component 

of the Act’s tiered analysis, but are not to be tethered to or 

confused with essential job functions or qualifications, except 

in extremely limited and narrow circumstances.12 Such 

12. The United States and EEOC, as amici, suggest that there are 

certain isolated instances in which essential functions will “necessarily 

implicate issues of safety.” Brief of Amicus United States at 26. 

Admittedly, a firefighter who could not “carry an unconscious adult out 

of a burning building,” 29 C.F.R. § 1630, App. § 1630.2(n), would not 

be qualified to perform the essential functions of the position and would, 

also, be unsafe. Similarly, an airline pilot able to take off and land safely 

only “sometimes” could not perform the essential functions of the job. 

In both instances, the essential functions need not be analyzed in terms 

of safety but, rather, inability consistently to do that which the job always 

(Cont’d) 
21 

considerations apply at a later stage of the analysis. At that stage, 

Congress placed the burden on the employer to demonstrate 

that its selection criteria or qualification standards are job-related 

and reflect business necessity. See 42 U.S.C. § 12112(b)(6) 

(“unless” the standard is “job related .. . [and] consistent with 

business necessity . . .”); see also 42 U.S.C. § 12113(a); 

H.R. Rep. No. 485, pt. 3, at 42 (1990), reprinted in 1990 

U.S.C.C.A.N. 445, 465 (“[A] facially neutral qualification 

standard, employment test or other selection criterion that has a 

discriminatory effect on persons with disabilities .. . would be 

discriminatory unless the employer can demonstrate that it is 

job related and required by business necessity.”) (emphasis 

added).13 

Beyond the express intent of Congress, there are good and 

sound policy reasons why the business necessity defense in 

general, and the direct threat defense in particular, should be 

(Cont’d) 

demands. Consideration of such issues from a health or safety perspective 

only clouds the issue of what is required with respect to an essential 

functions analysis. See, e.g., E.E.O.C. v. United Parcel Services, Inc., 

149 F. Supp. 2d 1115, 1159 n.3 (N.D. Cal. 2000) (“[D]riving without 

accidents is like flying without crashing.”). 

13. A chronology of relevant events itself proves conclusively that 

Congress intended business necessity (and “direct threat”) to be proven 

by the employer. Business necessity is not a new concept in employment 

discrimination law. In Wards Cove Packing Co. v. Atonio, 490 U.S. 642 

(1989), a disparate impact case arising under Title VII, the Court placed 

the burden of proof with respect to business necessity upon the plaintiff. 

Id. at 659. In drafting the ADA, the Senate Committee specifically 

referred to allocation of burdens of proof as had existed the day before 

the Ward’s Cove decision. S. Rep. No. 101-116, at 38 (1989). To further 

reinforce the point, Congress later, in the Civil Rights Act of 1991, 

clarified the business necessity defense by clearly placing the 

burden upon the employer. 42 U.S.C. § 2000e-2(k)(1)(A)(i) (1994). 

See Ann Hubbard, Understanding and Implementing the ADA’s Direct 

Threat Defense, 95 Nw. U. L. Rev. 1279, 1339-42 (2001). 
22 

proven by the employer. Congress has incorporated 

consideration of the employer’s judgment with regard to the 

essential functions of the job. 42 U.S.C. § 12111(8). With respect 

to business necessity and direct threat, the employer often will 

have superior information and knowledge about workplace 

requirements and operations. See generally Peter David Blanck 

& Glenn Pransky, Workers with Disabilities, 14 Occupational 

Medicine: State of the Art Reviews 581, 586-87 (1999). 

Moreover, making certain that business necessity and direct 

threat are subject to employer proof allows the mandated tiered 

analysis to go forward in an orderly fashion. The careful stepby-step process of analyzing job placement issues is shortcircuited when defenses and essential functions are conflated 

or merged. Collapsing the issues or truncating the process 

renders decisions susceptible to the type of myth and paternalism 

that gave rise to the civil rights model and the ADA.14 

Further, such conflation violates a basic canon of statutory 

construction, that no portion of a statute be rendered superfluous. 

See TRW Inc. v. Andrews, 122 S. Ct. 441, 448-49 (2001) 

(recognizing and applying canon); Duncan v. Walker, 121 S. 

Ct. 2120, 2125 (2001) (“It is our duty ‘to give effect, if possible, 

to every clause and word of a statute.’”) (citing United States v. 

14. Cases cited by Amici Equal Employment Advisory Council 

and National Association of Manufacturers, in fact, illustrate the 

unfortunate effects of analysis of safety functions designated by Congress 

as a defense as part of the “qualified individual” analysis. By failing to 

respect the analytical rigor required by the statute, unnecessary confusion 

can result. See, e.g., LaChance v. Duffy’s Draft House, Inc., 146 F.3d 

832, 835-36 (11thCir. 1998) (affirming grant of summary judgment on 

the basis that plaintiff was not a “qualified individual” but incorporating 

“direct threat” analysis where medical condition posed a danger to 

plaintiff and “others as well”); Turco v. Hoechst Celanese Corp., 101 

F.3d 1090, 1094 (5thCir. 1996) (alternate holding quoting with approval 

direct threat defense). In either case, the courts clearly could have 

separated the “qualified individual” analysis from the direct threat 

analysis as required by the statute with no violence whatsoever to the 

result. 
23 

Menasche, 348 U.S. 528, 538-39 (1955), quoting Montclair v. 

Ramsdell, 107 U.S. 147, 152 (1883)). Indeed, why would 

Congress fashion a separate defense if “direct threat” were 

already addressed by the “qualified individual” analysis? 

This violates the requirement, recognized by this Court in EEOC 

v. Wafflehouse, Inc., that the ADA be given its “natural” reading. 

III. THE EEOC’S REGULATIONS CONCERNING 

DIRECT THREAT TO SELF ARE NOT ENTITLED 

TO CHEVRON DEFERENCE 

This Court held in Solid Waste Agency of Northern Cook 

County v. United States Army Corps of Engineers, 531 U.S. 

159 (2001), that an agency exceeds its authority in enacting an 

administrative rule that expands a statutory definition. In Solid 

Waste Agency, the Court held that the Corps of Engineers 

had exceeded its authority when it promulgated regulations that 

expanded upon a statutory definition in the Clean Air 

Act because it departed from the plain language of the Act. 

Id. at 173. 

In the ADA, Congress chose to define “direct threat” 

narrowly. 42 U.S.C. § 12111(3) (“The term ‘direct threat’ means 

a significant risk to the health or safety of others that cannot be 

eliminated by reasonable accommodation.”). The EEOC’s 

definition of direct threat, and therefore its “direct threat” 

qualification standard, unwarrantedly expands the definition 

Congress chose to give “direct threat” in the ADA. Further, no 

other provision of the statute, including the “direct threat” 

defense, supports the EEOC’s regulation. Accordingly, the 

“direct threat to self” regulation must be invalidated. 

For the same reasons, the EEOC regulation cannot be saved 

by the deference accorded agency action in Chevron U.S.A., 

Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 

(1984). The threshold question in determining whether Chevron 

deference is appropriate “[f]irst, always, is the question whether 

Congress has directly spoken to the precise question at issue 
24 

. . . court[s], . . . as well as the agency, must give effect to the 

unambiguously expressed intent of Congress.” Id. at 843. 

Only “if the statute is silent or ambiguous with respect to 

the specific issue, the question for the court is whether the 

agency’s answer is based on a permissible construction of the 

statute.” Id. See also United States v. Mead Corp., 121 S. Ct. 

2164, 2172 (2001) (holding that a court is “obliged to accept” 

an agency’s position only if “Congress has not previously 

spoken to the point at issue” and the agency position is 

“reasonable”). Delegation occurs only “[w]hen Congress has 

‘explicitly left a gap for the agency to fill’.” 121 S. Ct. at 2171 

(citing Chevron, 467 U.S. at 843-44). Here there is no gap. 

Congress defined “direct threat” to mean a significant risk to 

others. 42 U.S.C. § 12111(3).15 Nowhere in the Act is direct 

threat defined as a “risk to self.” Accordingly, Chevron deference 

is not appropriate. 

15. Even if a deferential standard is appropriate in this case, the 

EEOC regulation is an unwarranted expansion of Congressional intent 

in enacting the ADA. As this Court reasoned in Chevron, under a 

deferential standard, if a choice of interpretation made by an agency 

“represents a reasonable accommodation of conflicting policies that were 

committed to the agency’s care by the statute, we should not disturb it 

unless it appears from the statute or its legislative history that the 

accommodation is not one that Congress would have sanctioned.” 

Chevron, 467 U.S. at 845, citing United States v. Shimer, 367 U.S. 374 

(1961) (holding same). 

Even in the event the Court finds that deference is appropriate, the 

purpose of the statute, as expressed in the statute itself, and the legislative 

history, make it clear that Congress would not have sanctioned the 

interpretation placed on the “direct threat” defense by the EEOC. 

The stated purpose and legislative history make it clear that Congress 

never intended that employers be charged with determining what risk 

an individual with a disability can or should accept in performing his or 

her job. See 42 U.S.C. § 12101(a)(5) (setting forth Congressional finding 

that “individuals with disabilities continually encounter various forms 

of discrimination, including . . . overprotective rules and policies . . . 

exclusionary qualification standards and criteria, and relegation to lesser 

. . . jobs, or other opportunities.”) 
25 

CONCLUSION 

The NCD’s report on federal enforcement of the ADA, 

Promises To Keep: A Decade of Enforcement of the Americans 

with Disabilities Act (2000), noted that the EEOC’s expanded 

definition of direct threat invites outcomes directly at odds with 

the ADA. The “threat to self” defense fosters the view that people 

with disabilities need to be protected from themselves and from 

their choices. This case is about who is best able to make those 

most personal of decisions, which here involves encountering 

some future risk to health in the workplace. 

For the above stated reasons, the decision of the Ninth 

Circuit should be affirmed. 

Respectfully submitted, 

PETER BLANCK*

Professor and Director

LEONARD A. SANDLER

Clinical Professor

and Co-Director

UNIVERSITY OF IOWA COLLEGE

OF LAW, AND LAW, HEALTH POLICY

AND DISABILITY CENTER

431 Boyd Law Bldg.

University of Iowa

Iowa City, IA 52242-1113

(319) 335-9043

DIANE KUTZKO 

MARK L. ZAIGER 

DOUGLAS R. OELSCHLAEGER 

SARAH J. GAYER

SHUTTLEWORTH & INGERSOLL, P.L.C.

500 Firstar Bank Bldg.

P.O. Box 2107

Cedar Rapids, IA 52406

(319) 365-9461

* Counsel of Record Counsel for Amicus Curiae